As filed with the Securities and Exchange
Commission on November 5, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
China
Ceramics Co., Ltd.
(
Exact Name
of Registrant as Specified in its Charter
)
British Virgin Islands
(Jurisdiction of Incorporation)
Not applicable
(I.R.S. Employer Identification Number)
c/o Jinjiang Hengda Ceramics Co., Ltd.
Junbing Industrial Zone, Anhai, Jinjiang
City, Fujian Province, PRC
Tel: +86 (595) 8576 5053; Fax: +86 (595)
8576 5059
(Address, including zip code, and telephone
number,including area code, of registrant's principal executive offices)
Huang Jia Dong
c/o Jinjiang Hengda Ceramics Co., Ltd.
Junbing Industrial Zone, Anhai, Jinjiang
City, Fujian Province, PRC
Tel: +86 (595) 8576 5053; Fax: +86 (595)
8576 5059
(Name, Telephone, E-mail and/or Facsimile
Number and Address of Company Contact Person)
Please send copies of all communications
to:
Ralph V. De Martino, Esq.
Alec Orudjev, Esq.
Schiff Hardin LLP
901 K Street NW, Suite 700
Washington, DC 20001
Tel: (202)724-6848
Fax: (202) 778-6460
Approximate date
of commencement of proposed sale to the public:
As soon as practicable and from time to time after the effective date of this
Registration Statement.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box:
¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following
box.
x
If this form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number in the earlier effective registration statement for the same offering.
¨
If this Form is
a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Security
Being Registered (1)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount of
Registration Fee (3)
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Shares, par value $0.008 per share
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Debt securities
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Warrants
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Total
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$
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50,000,000
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$
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6,060.00
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(1) There are being
registered under this registration statement such indeterminate number of securities as shall have an aggregate initial offering
price not to exceed US$50,000,000. The proposed maximum initial offering price per security will be determined, from time to time,
by the registrant in connection with the sale of the securities under this registration statement.
(2) Estimated solely
for purposes of calculating the registration fee pursuant to Rule 457(o).
(3) Calculated in accordance
with Rule 457(o).
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further
amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
PART I – INFORMATION REQUIRED IN
PROSPECTUS
The information in this prospectus is
not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting offers to buy
these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated [_], 2018
Prospectus
China Ceramics Co., Ltd.
$50,000,000
Shares
Debt securities
Warrants
We may offer and sell
shares, debt securities or warrants in any combination from time to time in one or more offerings, at prices and on terms described
in one or more supplements to this prospectus. The debt securities and warrants may be convertible into or exercisable or exchangeable
for our shares or other securities. The aggregate initial offering price of all securities sold by us under this prospectus will
not exceed US$50,000,000.
Each time we sell securities,
we will provide a supplement to this prospectus that contains specific information about the offering and the terms of the securities.
The supplement may also add, update or change information contained in this prospectus. We may also authorize one or more free
writing prospectuses to be provided in connection with a specific offering. You should read this prospectus, any supplement and
any free writing prospectus before you invest in any of our securities.
We may sell the securities
independently or together with any other securities registered hereunder. We may sell the securities through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis. See
“Plan of Distribution.” If any underwriters, dealers or agents are involved in the sale of any of the securities, their
names, and any applicable purchase price, fee, commission or discount arrangements between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable prospectus supplement.
Our shares are listed
on the NASDAQ Capital Market under the symbol “CCCL”. On November 2, 2018, the closing price of our shares was $2.41
per share.
Investing in our
securities involves risks. See “Risk Factors” referenced on page 4.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is [_], 2018.
Table of Contents
About This Prospectus
Before you invest in
any of our securities, you should carefully read this prospectus and any applicable prospectus supplement, together with the additional
information described in the sections entitled “Incorporation of Documents by Reference” and “Where You Can Find
Additional Information” in this prospectus.
This prospectus is
part of a registration statement on Form F-3 that we filed with the Securities and Exchange Commission (the “SEC”)
utilizing a “shelf” registration process permitted under the Securities Act of 1933, as amended. By using a “shelf”
registration statement, we may sell any of our securities from time to time and in one or more offerings. This prospectus only
provides you with a summary description of these securities. Each time we sell securities, we will provide a supplement to this
prospectus that contains specific information about the securities being offered and the specific terms of that offering. The supplement
may also add, update or change information contained in this prospectus. If there is any inconsistency between the information
in this prospectus and any applicable prospectus supplement, you should rely on the prospectus supplement.
Certain Defined Terms and Conventions
Unless otherwise indicated,
references in this prospectus to:
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“China” or the “PRC” are to the People’s Republic of China, excluding,
for the purpose of this prospectus only, Taiwan and the special administrative regions of Hong Kong and Macau;
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“RMB” and “Renminbi” are to the legal currency of China (see “- Exchange
Rate Information” for translations of RMB into U.S. dollars in this prospectus). This prospectus contains translations of
certain RMB amounts into U.S. dollar amounts at specified rates. Unless otherwise stated, the translations of RMB into U.S. dollars
have been made at the exchange rate as set forth on September 28, 2018 in the H.10 statistical release of the Federal Reserve Board,
which was RMB6.868 to US$1.00. We make no representation that the RMB or U.S. dollar amounts referred to in this prospectus could
have been or could be converted into U.S. dollars or RMB, as the case may be, at any particular rate or at all (also see “Risk
Factors”). On Oc
tober 26, 2018, the exchange rate
was RMB6.9425 to US$1.00.
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“shares” are to our shares, par value US$0.008 per share.
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“US$” and “U.S. dollars” are to the legal currency of the United States.
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“we,” “us,” “our,” and “China Ceramics” refers
to China Ceramics Co., Ltd., a British Virgin Islands company, and its subsidiaries, including Success Winner Limited (“Success
Winner”), a British Virgin Islands company and wholly owned subsidiary of China Ceramics, Stand Best Creation Limited (“Stand
Best”), a Hong Kong company and wholly owned subsidiary of Success Winner and the entity that wholly owns Jinjiang Hengda
Ceramics Co., Ltd. (“Hengda”), a PRC operating company that in turn wholly owns Jiangxi Hengdali Ceramic Materials
Co., Ltd. (“Hengdali”), and Fujian Province Hengdali Building Materials Co., Ltd. each a PRC operating company.
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Our Business
We are a leading Chinese
manufacturer of ceramic tiles used for exterior siding and for interior flooring and design in residential and commercial buildings.
The ceramic tiles, sold under the “HD” or “Hengda,” “HDL” or “Hengdeli”, “Pottery
Capital of Tang Dynasty”, “TOERTO” and ”WULIQIAO” brands are available in over two thousand styles,
colors and size combinations. Currently, we have five principal product categories: (i) porcelain tiles, (ii) glazed tiles, (iii)
glazed porcelain tiles, (iv) rustic tiles, and (v) polished glazed tiles. Ceramic tiles are widely used in the PRC as a construction
material for residential and commercial buildings. Ceramic tiles are used for flooring, interior walls for decorative purposes
and on exterior siding due to their resistance to temperature, extreme environments, erosion, abrasion and discoloration for extended
periods of time. Our manufacturing facilities operated by Jinjiang Hengda Ceramics Co., Ltd. are located in Jinjiang, Fujian Province,
and our manufacturing facilities operated by Jiangxi Hengdali Ceramic Materials Co., Ltd. are located in Gaoan, Jiangxi Province.
Corporate Information
Our principal executive
office is located at Junbing Industrial Zone, Anhai, Jinjiang City, Fujian Province, People’s Republic of China. Our telephone
number at this address is +86 595 8576 5053. Our registered office is Craigmuir Chambers, Road Town, Tortola, British Virgin Islands,
and our registered agent is Harneys Corporate Services Limited. We maintain a website at http://www.cceramics.com that contains
information about our company.
Information on this web site is not part of this prospectus.
Securities Being Offered
We may offer and sell
shares, debt securities or warrants in any combination from time to time in one or more offerings, at prices and on terms described
in one or more supplements to this prospectus. The debt securities and warrants may be convertible into or exercisable or exchangeable
for our shares or other securities. The aggregate initial offering price of all securities sold by us under this prospectus will
not exceed US$50,000,000. We may sell these securities directly to you, through underwriters, dealers or agents we select, or through
a combination of these methods. We will describe the plan of distribution for any particular offering of these securities in the
applicable prospectus supplement. This prospectus may not be used to sell our securities unless it is accompanied by a prospectus
supplement.
Risk Factors
Investing in our securities
involves risk. Before investing in any securities that may be offered pursuant to this prospectus, you should carefully consider
the risk factors set forth under the heading “Item 3.D. Risk Factors” in our 2017 Annual Report, which is incorporated
in this prospectus by reference, as updated by our subsequent filings under the Exchange Act and, if applicable, in any accompanying
prospectus supplement or relevant free writing prospectus. These risks and uncertainties could materially affect our business,
results of operations or financial condition and cause the value of our securities to decline. You could lose all or part of your
investment.
Cautionary Note Regarding Forward-Looking
Statements
Some of the information
in this prospectus, any prospectus supplement, and the documents we incorporate by reference contains forward-looking statements
within the meaning of the federal securities laws. You should not rely on forward-looking statements in this prospectus, any prospectus
supplement, or the documents we incorporate by reference. Forward-looking statements typically are identified by use of terms such
as “anticipate,” “believe,” “plan,” “expect,” “future,” “intend,”
“may,” “will,” “should,” “estimate,” “predict,” “potential,”
“continue,” and similar words, although some forward-looking statements are expressed differently. This prospectus,
any prospectus supplement, and the documents we incorporate by reference may also contain forwardlooking statements attributed
to third parties relating to their estimates regarding the growth of our markets. All forward-looking statements address matters
that involve risks and uncertainties, and there are many important risks, uncertainties and other factors that could cause our
actual results, as well as those of the markets we serve, levels of activity, performance, achievements and prospects to differ
materially from the forward-looking statements contained in this prospectus, any prospectus supplement, and the documents we incorporate
by reference.
You should also consider
carefully the statements under “Risk Factors” and other sections of this prospectus, any prospectus supplement, and
the documents we incorporate by reference, which address additional facts that could cause our actual results to differ from those
set forth in the forward-looking statements. We caution investors not to place significant reliance on the forward-looking statements
contained in this prospectus, any prospectus supplement, and the documents we incorporate by reference. We undertake no obligation
to publicly update or review any forward-looking statements, whether as a result of new information, future developments or otherwise.
Ratio of Earnings to Fixed Charges
A prospectus supplement
for an offering of our debt securities or warrants to purchase such securities will include information of our ratio of earnings
to fixed charges.
Use of Proceeds
Except as otherwise
provided in a prospectus supplement, we will use the net proceeds from the sale of the securities covered by this prospectus for
working capital and general corporate purposes. When a particular series of securities is offered, the prospectus supplement relating
to that offering will set forth our intended use of the net proceeds received from the sale of those securities.
Dividends
We paid a cash dividend
of US$0.10 (equivalent to RMB0.61) per share each on July 13, 2013 and January 14, 2014, respectively, to our shareholders which
totaled in aggregate US$4.1 million (equivalent to RMB24.9 million). Also, we paid a cash dividend of US$0.0125 (equivalent to
RMB0.08) per share each on July 14, 2014 and January 14, 2015, respectively, to our shareholders which totaled in aggregate US$0.5
million (equivalent to RMB3.2 million).
We do not currently
have any plans to pay any cash dividends in the foreseeable future on our shares being sold in this offering. We currently intend
to retain most, if not all, of our available funds and any future earnings to operate and expand our business. The payment of dividends
by entities organized in China is subject to limitations. Regulations in the PRC currently permit payment of dividends only out
of accumulated profits as determined in accordance with PRC accounting standards and regulations. Each of our Chinese subsidiaries
is also required to set aside at least 10% of its after-tax profit based on China’s accounting standards each year to its
general reserves until the cumulative amount of such reserves reach 50% of its registered capital. These reserves are not distributable
as cash dividends. The board of directors of our PRC subsidiaries, each of which is a wholly foreign owned enterprise, has the
discretion to allocate a portion of its after-tax profits to its staff welfare and bonus funds, which is likewise not distributable
to its equity owners except in the event of a liquidation of the foreign-invested enterprise. If we decide to pay dividends in
the future, these restrictions may impede our ability to pay dividends. In addition, if any of these Chinese entities incurs debt
on its own behalf in the future, the instruments governing the debt may restrict its ability to pay dividends or make other distributions
to us.
Our Board of Directors
has discretion on whether to pay dividends. Even if our board of directors decides to pay dividends, the form, frequency and amount
will depend upon our future operations and earnings, capital requirements and surplus, general financial condition, contractual
restrictions and other factors that our board of directors may deem relevant.
Capitalization and Indebtedness
Our capitalization
will be set forth in the applicable prospectus supplement or in a report on Form 6-K subsequently furnished to the SEC and specifically
incorporated by reference into this prospectus.
Description
of Securities
We
may issue from time to time, in one or more offerings, shares, debt securities and warrants. We will set forth in the applicable
prospectus supplement a description of debt securities and warrants, and, in certain cases, the shares that may be offered under
this prospectus. The terms of the offering of securities, the initial offering price and the net proceeds to us will be contained
in the prospectus supplement, and other offering material, relating to such offer. The supplement may also add, update or change
information contained in this prospectus. You should carefully read this prospectus and any supplement before you invest in any
of our securities.
Description of Share Capital
The following description
of the material terms of our shares and warrants includes a summary of specified provisions of the Memorandum of Association and
Articles of Association. This description is subject to the relevant provisions of the BVI Business Companies Act, 2004 (as amended)
and is qualified by reference to our Memorandum of Association and Articles of Association, copies of which are incorporated in
this registration statement by reference.
General
China Ceramics is
authorized to issue 51,000,000 shares of US$0.008 par value per share of a single class. As of the date of this filing, 4,654,812
shares are outstanding. The remaining authorized and unissued shares will be available for future issuance without additional
shareholder approval. While the additional shares are not designed to deter or prevent a change of control, under some circumstances
China Ceramics could use them to create voting impediments or to frustrate persons seeking to effect a takeover or otherwise gain
control, by, for example, issuing shares in private placements to purchasers who might side with the Board of Directors in opposing
a hostile takeover bid.
China Ceramics’s
shareholders of record are entitled to one vote for each share held on all matters to be voted on by shareholders. Members of China
Ceramics’s Board of Directors serve for indefinite terms. There is no cumulative voting with respect to the election of directors,
with the result that the holders of more than 50% of the shares eligible to vote for the election of directors can elect all of
the directors. China Ceramics’s shareholders have no conversion, preemptive or other subscription rights and there are no
sinking fund provisions applicable to the shares.
Our shares have been
listed on the NASDAQ Stock Market under the symbol “CCCL” since January 18, 2011. Our shares were listed on the NASDAQ
Capital Market from November 3, 2010 through January 17, 2011. and were relisted on the Nasdaq Capital Market on March 23, 2016
following the listing transfer where they are trading now under the same symbol. Our shares were listed on the NASDAQ Global Market
from January 18, 2011 until March 22, 2016. The shares were previously quoted on the OTC Bulletin Board from December 29, 2009
through November 2, 2010.
Directors
The China Ceramics
Articles of Association provides only for unanimous written consents of directors. The China Ceramics Articles of Association permit
shareholders to remove a sitting director without cause upon a majority vote of the shareholders.
Defenses Against
Hostile Takeovers
While the following
discussion summarizes the reasons for, and the operation and effects of, the principal provisions of China Ceramics’ Memorandum
and Articles of Association that management has identified as potentially having an anti-takeover effect, it is not intended to
be a complete description of all potential anti-takeover effects, and it is qualified by reference to the full texts of China Ceramics’
Memorandum and Articles of Association.
In general, the anti-takeover
provisions of China Ceramics’ Memorandum and Articles of Association are designed to minimize susceptibility to sudden acquisitions
of control that have not been negotiated with and approved by China Ceramics’ board of directors. As a result, these provisions
may tend to make it more difficult to remove the incumbent members of the board of directors. The provisions would not prohibit
an acquisition of control of China Ceramics or a tender offer for all of China Ceramics’ shares. The provisions are designed
to discourage any tender offer or other attempt to gain control of China Ceramics in a transaction that is not approved by the
board of directors, by making it more difficult for a person or group to obtain control of China Ceramics in a short time and
then impose its will on the remaining shareholders. However, to the extent such provisions successfully discourage the acquisition
of control of China Ceramics or tender offers for all or part of China Ceramics’ shares without approval of the board of
directors, they may have the effect of preventing an acquisition or tender offer which might be viewed by stockholders to be in
their best interests.
Tender offers or other
non-open market acquisitions of shares will generally be made at prices above the prevailing market price of China Ceramics’
shares. In addition, acquisitions of shares by persons attempting to acquire control through market purchases may cause the market
price of the shares to reach levels that are higher than would otherwise be the case. Anti-takeover provisions may discourage such
purchases, particularly those of less than all of China Ceramics’ shares, and may thereby deprive stockholders of an opportunity
to sell their stock at a temporarily higher price. These provisions may therefore decrease the likelihood that a tender offer will
be made, and, if made, will be successful. As a result, the provisions may adversely affect those stockholders who would desire
to participate in a tender offer. These provisions may also serve to insulate incumbent management from change and to discourage
not only sudden or hostile takeover attempts, but also any attempts to acquire control that are not approved by the board of directors,
whether or not stockholders deem such transactions to be in their best interest.
Shareholder Meetings
British Virgin Island
law provides that shareholder meetings shall be convened by the board of directors at any time or upon the written request of shareholders
holding more than 30% of the votes of the issued and outstanding voting shares of the company. China Ceramics’ Articles of
Association provide that annual shareholder meetings for the election of directors may be called only by the directors.
Number of Directors
and Filling Vacancies on the Board of Directors
British Virgin Islands
law requires that the board of directors of a company consist of one or more directors and that the number of directors shall be
set by the company’s Articles of Association, with a minimum of one director. China Ceramics’ Articles of Association
provide that the number of directors shall be not less than one, subject to any subsequent amendment to change the number of directors.
The power to determine the number of directors is vested in the board of directors and the shareholders. The power to fill vacancies,
whether occurring by reason of an increase in the number of directors or by resignation, is vested primarily in the shareholders.
Directors may be removed by the shareholders only for cause or without cause on a vote of the members representing a majority of
the shares entitled to vote.
Election of Directors
Under British Virgin
Islands law, there is no cumulative voting by shareholders for the election of the directors. The absence of cumulative voting
rights effectively means that the holders of a majority of the shares voted at a shareholder meeting may, if they so choose, elect
all directors of China Ceramics who are up for election, thus precluding a small group of shareholders from controlling the election
of one or more representatives to the board of directors.
Advance Notice Requirements
for Nomination of Directors and Presentation of New Business at Meetings of Shareholders; Action by Written Consent
The China Ceramics
Articles of Association provide for advance notice requirements for shareholder proposals and nominations for director. Generally,
to be timely, notice must be delivered to the secretary of China Ceramics at its principal executive offices not fewer than 10
days nor more than 60 days prior to the first anniversary date of the annual meeting for the preceding year. Special meetings may
be called by China Ceramics’ board of directors or by shareholders comprising a majority of the combined voting power of
the holders of the then issued and outstanding shares entitled to vote. These provisions make it more procedurally difficult for
a shareholder to place a proposal or nomination on the meeting agenda or to take action without a meeting, and therefore may reduce
the likelihood that a shareholder will seek to take independent action to replace directors or seek a shareholder vote with respect
to other matters that are not supported by management.
Rights of Minority
Shareholders
Under the statutory
law of the British Virgin Islands, the principal protection of minority shareholders is that shareholders may bring an action to
enforce the constituent documents of the company, the Memorandum and Articles of Association. Shareholders are entitled to have
the affairs of the company conducted in accordance with the general law and the Memorandum and Articles. The company is obliged
to hold an annual meeting and provide for the election of directors. In addition, the BVI Business Companies Act provides that
a shareholder may bring an action against the company for a breach of a duty owed by the company to him in his capacity as a shareholder
or if he considers that the affairs of the company are being, have been or are likely to be conducted in a manner which is unfairly
prejudicial to him.
There are common law
rights for the protection of shareholders that may be invoked, largely dependent on English company law, since the case law on
British Virgin Islands business companies is limited. Under the general rule pursuant to English company law known as the rule
in Foss v. Harbottle, a court will generally refuse to interfere with the management of a company at the insistence of a minority
of its shareholders who express dissatisfaction with the conduct of the company’s affairs by the majority or the board of
directors. However, every shareholder is entitled to have the affairs of the company conducted properly according to law and the
constituent documents of the corporation. As such, if those who control the company have persistently disregarded the requirements
of company law or the provisions of the company’s memorandum or articles of association, then the courts will grant relief.
Generally, the areas in which the courts will intervene are the following: (i) an act complained of which is outside the scope
of the authorized business or is illegal or not capable of ratification by the majority, (ii) acts that constitute fraud on the
minority where the wrongdoers control the company, (iii) acts that infringe on the personal rights of the shareholders, such as
the right to vote, and (iv) where the company has not complied with provisions requiring approval of a special or extraordinary
majority of shareholders.
Under the law of Delaware,
the rights of minority shareholders are similar to that which will be applicable to the shareholders of China Ceramics. The principal
difference, as discussed elsewhere will be the methodology and the forum for bringing such an action. It is also generally the
case that the Delaware courts can exercise a wide latitude in interpretation and wide discretion in fashioning remedies as they
think fits the circumstances for the regulation of the company. Under English precepts of the law of minority shareholders, there
is generally a more restricted approach to the enforcement of the rights through the interpretation of the law, articles and memorandum.
Transfer of China
Ceramics Securities Upon Death of Holder
Because China Ceramics
is a British Virgin IsVI company, the transfer of the securities of China Ceramics, including the shares and warrants, for estate
administration purposes will be governed by British Virgin Islands law. This may require that the estate of a decedent security
holder of China Ceramics seek to probate or transfer under letters of administration for the estate issued by a court in the British
Virgin Islands in order to effectively transfer the shares of the deceased.
Transfer Agent and
Registrar
The Transfer Agent
and Registrar for the shares of China Ceramics shares, warrants and units is Continental Stock Transfer & Trust Company, 17
Battery Place, New York, NY 10004, (212) 509-4000.
Indemnification
of Directors and Officers
A director, officer
or agent of a company formed under the laws of the British Virgin Islands is obligated to act honestly and in good faith and exercise
care, diligence and skill of a reasonably prudent person acting in comparable circumstances. The Memorandum and Articles of China
Ceramics do not relieve directors, officers or agents from personal liability arising from the management of the business of the
company. Notwithstanding the foregoing, Section 132 of the BVI Business Companies Act permits indemnification of directors, officers
and agents against all expenses, including legal fees and judgments, fines and settlements, in respect of actions related to their
employment. The Acquisition Agreement provides indemnification in respect of the representations, warranties and covenants of the
parties, some of which may relate to the securities laws of the United States. There are no agreements that relieve directors,
officer or agents from personal liability. China Ceramics is permitted and intends to obtain director and officer insurance.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933, as amended (Securities Act) may be permitted to directors, officers or
persons controlling the registrant pursuant to the foregoing provisions, China Ceramics and CHAC have been informed that in the
opinion of the Securities and Exchange Commission such indemnification is against public policy, as expressed in the Securities
Act, and is, therefore, unenforceable.
Description of Debt Securities
We may issue series
of debt securities, which may include debt securities exchangeable for or convertible into shares. When we offer to sell a particular
series of debt securities, we will describe the specific terms of that series in a supplement to this prospectus. The following
description of debt securities will apply to the debt securities offered by this prospectus unless we provide otherwise in the
applicable prospectus supplement. The applicable prospectus supplement for a particular series of debt securities may specify different
or additional terms.
The debt securities
offered by this prospectus may be secured or unsecured, and may be senior debt securities, senior subordinated debt securities
or subordinated debt securities. The debt securities offered by this prospectus may be issued under an indenture between us and
the trustee under the indenture. The indenture may be qualified under, subject to, and governed by, the Trust Indenture Act of
1939, as amended. We have summarized selected portions of the indenture below. The summary is not complete. The form of the indenture
has been incorporated by reference as an exhibit to the registration statement on Form F-3, of which this prospectus is a part,
and you should read the indenture for provisions that may be important to you.
The terms of each series
of debt securities will be established by or pursuant to a resolution of our board of directors and detailed or determined in the
manner provided in a board of directors’ resolution, an officers’ certificate and by a supplemental indenture. The
particular terms of each series of debt securities will be described in a prospectus supplement relating to the series, including
any pricing supplement.
We may issue any amount
of debt securities under the indenture, which may be in one or more series with the same or different maturities, at par, at a
premium or at a discount. We will set forth in a prospectus supplement, including any related pricing supplement, relating to any
series of debt securities being offered, the initial offering price, the aggregate principal amount offered and the terms of the
debt securities, including, among other things, the following:
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the title of the debt securities;
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the price or prices (expressed as a percentage of the aggregate principal amount) at which we will
sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which we will repay the principal on the debt securities and the right, if
any, to extend the maturity of the debt securities;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the
rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities
will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will be payable and
any regular record date for any interest payment date;
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the place or places where the principal of, premium, and interest on the debt securities will be
payable, and where the debt securities of the series that are convertible or exchangeable may be surrendered for conversion or
exchange;
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any obligation or right we have to redeem the debt securities pursuant to any sinking fund or analogous
provisions or at the option of holders of the debt securities or at our option, and the terms and conditions upon which we are
obligated to or may redeem the debt securities;
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any obligation we have to repurchase the debt securities at the option of the holders of debt securities,
the dates on which and the price or prices at which we will repurchase the debt securities and other detailed terms and provisions
of these repurchase obligations;
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the denominations in which the debt securities will be issued;
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whether the debt securities will be issued in the form of certificated debt securities or global
debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration
of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities;
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the designation of the currency, currencies or currency units in which payment of principal of,
premium and interest on the debt securities will be made;
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if payments of principal of, premium or interest on, the debt securities will be made in one or
more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the
exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium or interest on, the debt securities
will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that
in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock
exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any addition to or change in the events of default described in the indenture with respect to the
debt securities and any change in the acceleration provisions described in the indenture with respect to the debt securities;
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any addition to or change in the covenants described in the indenture with respect to the debt
securities;
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whether the debt securities will be senior or subordinated and any applicable subordination provisions;
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a discussion of any material U.S. federal income tax considerations applicable to the debt securities;
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any other terms of the debt securities, which may modify any provisions of the indenture as it
applies to that series; and
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents
with respect to the debt securities.
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We may issue debt securities
that are exchangeable for and/or convertible into shares. The terms, if any, on which the debt securities may be exchanged and/or
converted will be set forth in the applicable prospectus supplement. Such terms may include provisions for exchange or conversion,
which can be mandatory, at the option of the holder or at our option, and the manner in which the number of shares or other securities
to be received by the holders of debt securities would be calculated.
We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their
maturity pursuant to the terms of the indenture. We will provide you with information on the U.S. federal income tax considerations,
and other special considerations applicable to any of these debt securities, in the applicable prospectus supplement. If we denominate
the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if
the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or
a foreign currency unit or units, we will provide you with information on the restrictions, elections, specific terms and other
information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units
in the applicable prospectus supplement.
We may issue debt securities
of a series in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary
identified in the prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive
form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred
except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary
to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary
or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series
and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable
prospectus supplement.
The indenture and the
debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York, unless we otherwise
specify in the applicable prospectus supplement
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Description of Warrants
We may issue and offer
warrants under the material terms and conditions described in this prospectus and any accompanying prospectus supplement. The accompanying
prospectus supplement may add, update or change the terms and conditions of the warrants as described in this prospectus.
General
We may issue warrants
to purchase our shares, or debt securities. Warrants may be issued independently or together with any securities and may be attached
to or separate from those securities. The warrants will be issued under warrant agreements to be entered into between us and a
bank or trust company, as warrant agent, all of which will be described in the prospectus supplement relating to the warrants we
are offering. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or
relationship of agency or trust for or with any holders or beneficial owners of warrants.
Equity Warrants
Each equity warrant
issued by us will entitle its holder to purchase the equity securities designated at an exercise price set forth in, or to be determinable
as set forth in, the related prospectus supplement. Equity warrants may be issued separately or together with equity securities.
The equity warrants
are to be issued under equity warrant agreements to be entered into between us and one or more banks or trust companies, as equity
warrant agent, as will be set forth in the applicable prospectus supplement and this prospectus.
The particular terms
of the equity warrants, the equity warrant agreements relating to the equity warrants and the equity warrant certificates representing
the equity warrants will be described in the applicable prospectus supplement, including, as applicable:
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the title of the equity warrants;
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the initial offering price;
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the aggregate amount of equity warrants and the aggregate amount of equity securities purchasable
upon exercise of the equity warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are
payable;
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if applicable, the designation and terms of the equity securities with which the equity warrants
are issued, and the amount of equity warrants issued with each equity security;
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the date, if any, on and after which the equity warrants and the related equity security will be
separately transferable;
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if applicable, the minimum or maximum amount of the equity warrants that may be exercised at any
one time;
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the date on which the right to exercise the equity warrants will commence and the date on which
the right will expire;
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if applicable, a discussion of United States federal income tax, accounting or other considerations
applicable to the equity warrants;
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anti-dilution provisions of the equity warrants, if any;
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redemption or call provisions, if any, applicable to the equity warrants; and
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any additional terms of the equity warrants, including terms, procedures and limitations relating
to the exchange and exercise of the equity warrants.
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Holders of equity warrants
will not be entitled, solely by virtue of being holders, to vote, to consent, to receive dividends, to receive notice as shareholders
with respect to any meeting of shareholders for the election of directors or any other matters, or to exercise any rights whatsoever
as a holder of the equity securities purchasable upon exercise of the equity warrants.
Debt Warrants
Each debt warrant issued
by us will entitle its holder to purchase the debt securities designated at an exercise price set forth in, or to be determinable
as set forth in, the related prospectus supplement. Debt warrants may be issued separately or together with debt securities.
The debt warrants are
to be issued under debt warrant agreements to be entered into between us, and one or more banks or trust companies, as debt warrant
agent, as will be set forth in the applicable prospectus supplement and this prospectus. The particular terms of each issue of
debt warrants, the debt warrant agreement relating to the debt warrants and the debt warrant certificates representing debt warrants
will be described in the applicable prospectus supplement, including, as applicable:
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the title of the debt warrants;
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the initial offering price;
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the title, aggregate principal amount and terms of the debt securities purchasable upon exercise
of the debt warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are
payable;
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the title and terms of any related debt securities with which the debt warrants are issued and
the amount of the debt warrants issued with each debt security;
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the date, if any, on and after which the debt warrants and the related debt securities will be
separately transferable;
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the principal amount of debt securities purchasable upon exercise of each debt warrant and the
price at which that principal amount of debt securities may be purchased upon exercise of each debt warrant;
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if applicable, the minimum or maximum amount of warrants that may be exercised at any one time;
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the date on which the right to exercise the debt warrants will commence and the date on which the
right will expire;
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if applicable, a discussion of United States federal
income tax, accounting or other considerations applicable to the debt warrants;
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whether the debt warrants represented by the debt warrant certificates will be issued in registered
or bearer form, and, if registered, where they may be transferred and registered;
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anti-dilution provisions of the debt warrants, if any;
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redemption or call provisions, if any, applicable to the debt warrants; and
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any additional terms of the debt warrants, including terms, procedures and limitations relating
to the exchange and exercise of the debt warrants.
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Debt warrant certificates
will be exchangeable for new debt warrant certificates of different denominations and, if in registered form, may be presented
for registration of transfer, and debt warrants may be exercised at the corporate trust office of the debt warrant agent or any
other office indicated in the related prospectus supplement. Before the exercise of debt warrants, holders of debt warrants will
not be entitled to payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon exercise
of the debt warrants, or to enforce any of the covenants in the indentures governing such debt securities.
Certain Income Tax Considerations
Material income tax
consequences relating to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set
forth in the applicable prospectus supplement relating to the offering of those securities.
Plan of Distribution
We may sell or distribute
the securities offered by this prospectus, from time to time, in one or more offerings, as follows:
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to dealers or underwriters for resale;
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directly to investors; or
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through a combination of any of these methods of sale.
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We will set forth in
a prospectus supplement or free writing prospectus the terms of the offering of securities, including:
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the name or names of any agents or underwriters;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation;
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the public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which such securities may be listed.
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If we use underwriters
for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities
in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth
in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities of the series offered
if they purchase any of the securities of that series. We may change from time to time any public offering price and any discounts
or concessions the underwriters allow or reallow or pay to dealers. We may use underwriters with whom we have a material relationship.
We will describe in a prospectus supplement or free writing prospectus naming the underwriter and the nature of any such relationship.
In compliance with
the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum discount or commission to be received
by any FINRA member or independent broker-dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to
this prospectus and any applicable prospectus supplement.
We may designate agents
who agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing
basis.
We may also sell securities
directly to one or more purchasers without using underwriters or agents.
Underwriters, dealers
and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any
discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts
and commissions under the Securities Act. We will identify in the applicable prospectus supplement or a free writing prospectus
any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers
and agents to indemnity them against specified civil liabilities, including liabilities under the Securities Act. Underwriters,
dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses.
We will bear all costs,
expenses and fees in connection with the registration of the securities as well as the expenses of all commissions and discounts,
if any, attributable to the sales of securities by us.
Unless otherwise specified
in the applicable prospectus supplement or any free writing prospectus, each class or series of securities will be a new issue
with no established trading market, other than our shares, which are listed on the NASDAQ Capital Market. We may elect to list
any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any
market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the
securities.
In connection with
an offering, an underwriter may purchase and sell securities in the open market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater
number of securities than they are required to purchase in the offering. “Covered” short sales are sales made in an
amount not greater than the underwriters’ option to purchase additional securities, if any, from us in the offering. If the
underwriters have an over-allotment option to purchase additional securities from us, the underwriters may close out any covered
short position by either exercising their over-allotment option or purchasing securities in the open market. In determining the
source of securities to close out the covered short position, the underwriters may consider, among other things, the price of securities
available for purchase in the open market as compared to the price at which they may purchase securities through the over-allotment
option. “Naked” short sales are any sales in excess of such option or where the underwriters do not have an over-allotment
option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position
is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the securities
in the open market after pricing that could adversely affect investors who purchase in the offering.
Accordingly, to cover
these short sales positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for or
purchase securities in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to
syndicate members or other broker-dealers participating in the offering are reclaimed if securities previously distributed in the
offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions
may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open
market. The impositions of a penalty bid may also affect the price of the securities to the extent that it discourages resale of
the securities. The magnitude or effect of any stabilization or other transactions is uncertain. These transactions may be effected
on the NASDAQ Capital Market or otherwise and, if commenced, may be discontinued at any time.
We may enter into derivative transactions
with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If
the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use
securities pledged by or borrowed from us or others to settle those sales or to close out any related open borrowings of stock,
and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement or
a post-effective amendment.
In addition, we may
loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this
prospectus. Such financial institution or third party may transfer its economic short position to investors in our securities or
in connection with a concurrent offering of other securities offered by this prospectus or otherwise.
Legal Matters
We are being represented
by Schiff Hardin LLP, Washington, DC with respect to legal matters of United States federal securities laws. The validity of the
shares offered in this offering and legal matters as to British Virgin Islands law will be passed upon for us by Harney Westwood
& Riegels. Legal matters will be passed upon for any underwriters, dealers or agents by counsel named in the applicable prospectus
supplement.
Experts
The financial statements
incorporated by reference in this prospectus have been audited by Centurion ZD CPA Limited, our independent registered public accounting
firm, and are included in reliance upon such reports given upon the authority of said firm as experts in auditing and accounting.
Enforceability of Civil Liabilities
Many of our officers
and directors, and some of the experts named in this prospectus, are residents of PRC or elsewhere outside of the U.S., and all
of our assets and the assets of such persons are located outside the U.S. As a result, it may be difficult for investors in the
U.S. to effect service of process within the U.S. upon such directors, officers and representatives of experts who are not residents
of the U.S. or to enforce against them judgments of a U.S. court predicated solely upon civil liability under U.S. federal securities
laws or the securities laws of any state within the U.S.
Substantially all of
our operations and records, and most of our senior management are located in the PRC. Our shareholders have limited ability to
assert and collect on claims in litigation against us and our principals. In addition, corporate organization and structure could
further impede the ability of a person to prove a claim or collect on a judgment against the Company. Finally, China has very restrictive
secrecy laws that prohibit the delivery of many of the financial records maintained by a business located in China to third parties
absent Chinese government approval. Since discovery is an important part of proving a claim in litigation, and since most if not
all of the Company’s records are in China, Chinese secrecy laws could frustrate efforts to prove a claim against the Company
or its management. In order to commence litigation in the United States against an individual such as an officer or director, that
individual must be served. While directors and officers of a Delaware corporation are routinely served for purposes of a suit against
them in Delaware for breach of fiduciary duty and there are means of serving individuals who reside outside the United States in
other litigation, generally service requires the cooperation of the country in which a defendant resides. China has a history of
failing to cooperate in efforts to effect such service upon Chinese citizens in China. These and other similar PRC laws and regulations
could substantially impair our shareholders abilities to investigate and prosecute claims against our Company, our officers and
our directors.
Incorporation of Documents by Reference
The SEC allows us
to “incorporate by reference” the information we file with them. This means that we can disclose important information
to you by referring you to those documents. Each document incorporated by reference is current only as of the date of such document,
and the incorporation by reference of such documents should not create any implication that there has been no change in our affairs
since the date thereof or that the information contained therein is current as of any time subsequent to its date. The information
incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update
the information contained in documents that have been incorporated by reference by making future filings with the SEC, the information
incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in the
case of a conflict or inconsistency between information contained in this prospectus and information incorporated by reference
into this prospectus, you should rely on the information contained in the document that was filed later.
We incorporate by reference
the documents listed below:
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our Annual Report on Form 20-F for the fiscal year ended December 31, 2017 filed with the SEC on
May 4, 2018;
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our material change report dated September 27, 2018 in connection with a press release distribution,
included as Exhibit 99.1 to our Report on Form 6-K furnished to the SEC on September 27, 2018; and
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with respect to each offering of securities under this prospectus, all our subsequent Annual Reports
on Form 20-F and any report on Form 6-K that (i) we file or furnish with the SEC on or after the date on which this prospectus
is first filed with the SEC and until the termination or completion of the offering under this prospectus and (ii) indicates that
it is being incorporated by reference in this prospectus.
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Unless expressly incorporated
by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with,
the SEC. We will provide to each person, including any beneficial owner, who receives a copy of this prospectus, upon written or
oral request, without charge, a copy of any or all of the documents we refer to above which we have incorporated by reference in
this prospectus, except for exhibits to such documents unless the exhibits are specifically incorporated by reference into this
prospectus. You should direct your requests to the attention of our chief financial officer at our principal executive office located
in c/o Junbing Industrial Zone, Anhai, Jinjiang City, Fujian Province, PRC. Our telephone number at this address is +86 (595) 8576
5053 and our fax number is Fax: +86 (595) 8576 5059.
You should rely only
on the information contained or incorporated by reference in this prospectus, in any applicable prospectus supplement or any related
free writing prospectus that we may authorize to be delivered to you. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not
make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the
information appearing in this prospectus, the applicable supplement to this prospectus or in any related free writing prospectus
is accurate as of its respective date, and that any information incorporated by reference is accurate only as of the date of the
document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and
prospects may have changed since those dates.
Where You Can Find More Information
We have filed with
the SEC a registration statement on Form F-3 under the Securities Act with respect to the offer and sale of securities pursuant
to this prospectus. This prospectus, filed as a part of the registration statement, does not contain all of the information set
forth in the registration statement or the exhibits and schedules thereto in accordance with the rules and regulations of the SEC
and no reference is hereby made to such omitted information. Statements made in this prospectus concerning the contents of any
contract, agreement or other document filed as an exhibit to the registration statement are summaries of all of the material terms
of such contract, agreement or document, but do not repeat all of their terms. Reference is made to each such exhibit for a more
complete description of the matters involved and such statements shall be deemed qualified in their entirety by such reference.
We are subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are applicable to a foreign
private issuer. In accordance with the Exchange Act, we file reports with the SEC, including annual reports on Form 20-F which
are required to be filed within four months following our fiscal year end. Our fiscal year end is December 31 of each year. We
also furnish to the SEC under cover of Form 6-K material information required to be made public in the British Virgin Islands,
filed with and made public by any stock exchange or automated quotation system or distributed by us to our shareholders. As a foreign
private issuer, we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements
to shareholders. In addition, our officers, directors and principal shareholders are exempt from the “short-swing profits”
reporting and liability provisions contained in Section 16 of the Exchange Act and related Exchange Act rules.
The registration statement
and the exhibits and schedules thereto, and reports and other information filed by us with the SEC may be inspected, without charge,
and copies may be obtained at prescribed rates, at the public reference facility maintained by the SEC at its principal office
at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference facility by
calling 1-800-SEC-0330. The SEC also maintains a website that contains reports, proxy and information statements and other information
regarding registrants that file electronically through the SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system, including the Company, which can be accessed at http://www.sec.gov.
Prospectus
China Ceramics Co., Ltd.
$50,000,000
Shares
Debt securities
Warrants
PROSPECTUS
, 2018
You should rely only on the information
contained in this prospectus. No dealer, salesperson or other person is authorized to give information that is not contained in
this prospectus. This prospectus is not an offer to sell nor is it seeking an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted. The information contained in this prospectus is correct only as of the date of this prospectus,
regardless of the time of the delivery of this prospectus or the sale of these securities.
Part II
Information not Required in Prospectus
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Item 8.
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Indemnification of directors and officers
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British Virgin Islands
law does limit the extent to which a company’s memorandum and articles of association may provide for indemnification of
officers and directors. China Ceramics’s memorandum and articles of association provides for indemnification of its officers
and directors for any liability incurred in their capacities as such, except through their own fraud or willful default to the
extent permitted under Britsh Virgin Islands law. Indemnification is only available to a person who acted in good faith and in
what that person believed to be in the best interests of China Ceramics.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling China Ceramics
pursuant to the foregoing provisions, China Ceramics has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is theretofore unenforceable.
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Item 9.
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Exhibits and financial statement schedules
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(a)
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Exhibits Pursuant to Item 601 of Regulation S-K:
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*
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To be filed as an exhibit to a post-effective amendment
to this registration statement or as an exhibit to a report filed or furnished with the SEC and incorporated herein by reference.
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**
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Previously filed as part of this registration statement.
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(1)
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Incorporated by reference to exhibits of the same number filed with China Holdings Acquisition
Corp.’s Registration Statement on Form F-1 or amendments thereto (File No. 333-145085).
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(a)
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The undersigned registrant hereby undertakes:
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(1) To
file, during any period in which offers or sales are being made, a further post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
Provided, however
, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) To
file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form
20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section
10(a)(3) of the Securities Act of 1933 or Rule 3-19 of Regulation S-X if such financial statements and information are contained
in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5) That,
for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933to any purchaser in the initial distribution
of the securities:
The undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating to the securities offering
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) The
undersigned registrant hereby undertakes that:
(i) For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement
as of the time it was declared effective.
(ii) For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(d) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(e) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, in accordance
with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jinjiang, Fujian Province, PRC on November 5, 2018.
|
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China Ceramics Co., Ltd.
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By:
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/s/ Hen Man Edmund
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Name:
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Hen Man Edmund
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Title:
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Chief Financial Officer
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KNOW ALL PERSONS BY
THESE PRESENTS, that each person whose signature appears below constitutes and appoints Hen Man Edmund as an attorney-in-fact with
full power of substitution, for him or her in any and all capacities, to do any and all acts and all things and to execute any
and all instruments which said attorney and agent may deem necessary or desirable to enable the registrant to comply with the Securities
Act of 1933, as amended (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange
Commission thereunder, in connection with the registration under the Securities Act of ordinary shares of the registrant (the “Shares”),
including, without limitation, the power and authority to sign the name of each of the undersigned in the capacities indicated
below to the Registration Statement on Form F-3 (the “Registration Statement”) to be filed with the Securities and
Exchange Commission with respect to such Shares, to any and all amendments or supplements to such Registration Statement, whether
such amendments or supplements are filed before or after the effective date of such Registration Statement, to any related Registration
Statement filed pursuant to Rule 462(b) under the Securities Act, and to any and all instruments or documents filed as part of
or in connection with such Registration Statement or any and all amendments thereto, whether such amendments are filed before or
after the effective date of such Registration Statement; and each of the undersigned hereby ratifies and confirms all that such
attorney and agent shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Huang Jia Dong*
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Chief Executive Officer, Director
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November 5, 2018
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Huang Jia Dong
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(Principal Executive Officer)
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/s/ Hen Man Edmund
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Chief Financial Officer
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November 5, 2018
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Hen Man Edmund
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(Principal Financial and Accounting Officer)
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/s/ Liu Jun*
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Director
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November 5, 2018
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Liu Jun
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/s/ Roy Tan Choon Kang*
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Director
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November 5, 2018
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Roy Tan Choon Kang
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/s/ Alex Ng Man Shek*
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Director
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November 5, 2018
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Alex Ng Man Shek
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/s/ Shen Cheng Liang*
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Director
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November 5, 2018
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Shen Cheng Liang
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* By
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/s/ Hen Man Edmund
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Hen Man Edmund
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Attorney-in-fact
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Exhibit 4.5
China Ceramics Co., Ltd.
INDENTURE
Dated as of [ ]
[ ]
TABLE
OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1
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Definitions
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1
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|
Section 1.2
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Other Definitions
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3
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Section 1.3
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Incorporation by Reference of Trust Indenture Act
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4
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Section 1.4
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Rules of Construction
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4
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ARTICLE II
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THE SECURITIES
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Section 2.1
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Issuable in Series
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4
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Section 2.2
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Establishment of Terms of Series of Securities
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4
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Section 2.3
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Execution and Authentication
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6
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Section 2.4
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Registrar and Paying Agent
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6
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Section 2.5
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Paying Agent to Hold Money in Trust
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7
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Section 2.6
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Security Holder Lists
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7
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Section 2.7
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Transfer and Exchange
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7
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Section 2.8
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Mutilated, Destroyed, Lost and Stolen Securities
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8
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Section 2.9
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Outstanding Securities
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8
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Section 2.10
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Treasury Securities
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9
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Section 2.11
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Temporary Securities
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9
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Section 2.12
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Cancellation
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9
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Section 2.13
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Defaulted Interest
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9
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Section 2.14
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Global Securities
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9
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Section 2.15
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CUSIP Numbers
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10
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ARTICLE III
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REDEMPTION
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Section 3.1
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Notice to Trustee
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10
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Section 3.2
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Selection of Securities to be Redeemed
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11
|
|
Section 3.3
|
Notice of Redemptionkon
|
11
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Section 3.4
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Effect of Notice of Redemption
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11
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Section 3.5
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Deposit of Redemption Price
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11
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Section 3.6
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Securities Redeemed in Part
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11
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ARTICLE IV
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COVENANTS
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Section 4.1
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Payment of Principal and Interest
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12
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Section 4.2
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SEC Reports
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12
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Section 4.3
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Compliance Certificate
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12
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Section 4.4
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Stay, Extension and Usury Laws
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12
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Section 4.5
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Corporate Existence
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12
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ARTICLE V
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SUCCESSORS
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Section 5.1
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When Company May Merge, Etc.
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13
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Section 5.2
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Successor Corporation Substituted
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13
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ARTICLE VI
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DEFAULTS AND REMEDIES
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Section 6.1
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Events of Default
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13
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Section 6.2
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Acceleration of Maturity; Rescission and Annulment
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14
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Section 6.3
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Collection of Indebtedness and Suits for Enforcement by Trustee
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14
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Section 6.4
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Trustee May File Proofs of Claim
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15
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Section 6.5
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Trustee May Enforce Claims Without Possession of Securities
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15
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Section 6.6
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Application of Money Collected
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16
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Section 6.7
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Limitation on Suits
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16
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Section 6.8
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Unconditional Right of Holders to Receive Principal and Interest
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16
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Section 6.9
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Restoration of Rights and Remedies
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16
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Section 6.10
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Rights and Remedies Cumulative
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17
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Section 6.11
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Delay or Omission Not Waiver
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17
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Section 6.12
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Control by Holders
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17
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Section 6.13
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Waiver of Past Defaults
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17
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Section 6.14
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Undertaking for Costs
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17
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ARTICLE VII
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TRUSTEE
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Section 7.1
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Duties of Trustee
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18
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Section 7.2
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Rights of Trustee
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19
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Section 7.3
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Force Majeure
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20
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Section 7.4
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Individual Rights of Trustee
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20
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Section 7.5
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Trustee’s Disclaimer
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20
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Section 7.6
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Notice of Defaults
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20
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Section 7.7
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Reports by Trustee to Holders
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20
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Section 7.8
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Compensation and Indemnity
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20
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Section 7.9
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Replacement of Trustee
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21
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Section 7.10
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Successor Trustee by Merger, etc.
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22
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Section 7.11
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Eligibility; Disqualification
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22
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Section 7.12
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Preferential Collection of Claims Against Company
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22
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ARTICLE VIII
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SATISFACTION AND DISCHARGE; DEFEASANCE
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Section 8.1
|
Satisfaction and Discharge of Indenture
|
22
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Section 8.2
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Application of Trust Funds; Indemnification
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23
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Section 8.3
|
Legal Defeasance of Securities of any Series
|
23
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Section 8.4
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Covenant Defeasance
|
24
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Section 8.5
|
Repayment to Company
|
25
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ARTICLE IX
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SUPPLEMENTAL INDENTURES, AMENDMENTS AND WAIVERS
|
|
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Section 9.1
|
Without Consent of Holders
|
25
|
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Section 9.2
|
With Consent of Holders
|
26
|
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Section 9.3
|
Limitations
|
26
|
|
Section 9.4
|
Compliance with Trust Indenture Act
|
26
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Section 9.5
|
Revocation and Effect of Consents
|
26
|
|
Section 9.6
|
Notation on or Exchange of Securities
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27
|
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Section 9.7
|
Trustee Protected
|
27
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ARTICLE X
|
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|
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MISCELLANEOUS
|
|
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Section 10.1
|
Trust Indenture Act Controls
|
27
|
|
Section 10.2
|
Notices
|
27
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Section 10.3
|
Communication by Holders with Other Holders
|
28
|
|
Section 10.4
|
Certificate and Opinion as to Conditions Precedent
|
28
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|
Section 10.5
|
Statements Required in Certificate or Opinion
|
28
|
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Section 10.6
|
Rules by Trustee and Agents
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28
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Section 10.7
|
Legal Holidays
|
28
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|
Section 10.8
|
No Recourse Against Others
|
28
|
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Section 10.9
|
Counterparts
|
29
|
|
Section 10.10
|
Governing Laws
|
29
|
|
Section 10.11
|
No Adverse Interpretation of Other Agreements
|
29
|
|
Section 10.12
|
Successors
|
29
|
|
Section 10.13
|
Severability
|
29
|
|
Section 10.14
|
Table of Contents, Headings, Etc.
|
29
|
|
Section 10.15
|
Securities in a Foreign Currency or in ECU
|
29
|
|
Section 10.16
|
Judgment Currency
|
30
|
|
|
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|
ARTICLE XI
|
|
|
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SINKING FUNDS
|
|
|
|
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|
|
Section 11.1
|
Applicability of Article
|
30
|
|
Section 11.2
|
Satisfaction of Sinking Fund Payments with Securities
|
31
|
|
Section 11.3
|
Redemption of Securities for Sinking Fund
|
31
|
Form of Indenture
Indenture dated as of [ ]
between China Ceramics Co., Ltd., an exempted company incorporated in the British Virgin Islands (“Company”), and [ ]
(“Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit
of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
.
“
Additional Amounts
”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“
Affiliate
” of any specified
person means any other person directly or indirectly controlling or controlled by or under common control with such specified person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by”
and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting
securities or by agreement or otherwise.
“
Agent
” means any Registrar,
Paying Agent or Notice Agent.
“
Board of Directors
”
means the Board of Directors of the Company or any duly authorized committee thereof.
“
Board Resolution
” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate
and delivered to the Trustee.
“
Business Day
” means,
unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close or a day the Corporate Trust Office is closed.
“
Capital Stock
” means
any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“
Company
” means the
party named as such above until a successor replaces it and thereafter means the successor.
“
Company Order
” means
a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“
Company Request
” means
a written request signed in the name of the Company by its Chairman, its Chief Executive Officer, or any Vice President and by
its Chief Financial Officer and delivered to the Trustee.
“
Corporate Trust Office
”
means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered.
“
Default
” means any
event which is, or after notice or passage of time or both would be, an Event of Default.
“
Depositary
” means,
with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“
Discount Security
”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
“
Dollars
” and “
$
”
means the currency of The United States of America.
“
ECU
” means the European
Currency Unit as determined by the Commission of the European Union.
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended.
“
Foreign Currency
” means
any currency or currency unit issued by a government other than the government of The United States of America.
“
Foreign Government Obligations
”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
“
GAAP
” means generally
accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in
effect as of the date of determination.
“
Global Security
” or “Global Securities”
means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part
of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary
or nominee.
“
Holder
” or “
Security
Holder
” means a person in whose name a Security is registered.
“
Indenture
” means this
Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“
interest
” with respect
to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“
Maturity
,” when used
with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Officer
” means the
Chairman, the Chief Executive Officer, any Vice President, or the Chief Financial Officer of the Company.
“
Officers
’
Certificate
”
means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial
officer or principal accounting officer.
“
Opinion of Counsel
”
means a written opinion of legal counsel, which opinion, is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company.
“
person
” means any individual,
corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“
principal
” of a Security
means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of,
the Security.
“
Responsible Officer
”
means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter,
any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular
subject and who shall in each case have direct responsibility for the administration of this Indenture.
“
SEC
” means the Securities
and Exchange Commission.
“
Securities
” means the
debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“
Series
” or “Series
of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
“
Stated Maturity
” when
used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“
Subsidiary
” of any
specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“
TIA
” means the Trust
Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any
such amendment, the Trust Indenture Act as so amended.
“
Trustee
” means the
person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person
who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect
to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“
U.S. Government Obligations
”
means securities which are (i) direct obligations of The United States of America for the payment of which its full faith
and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The
United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation evidenced by such depository receipt.
Section 1.2
Other Definitions
.
|
TERM
|
|
DEFINED IN SECTION
|
|
“
Bankruptcy Law
”
|
|
6.1
|
|
“
Custodian
”
|
|
6.1
|
|
“
Event of Default
”
|
|
6.1
|
|
“
Journal
”
|
|
10.15
|
|
“
Judgment Currency
”
|
|
10.16
|
|
“Legal Holiday”
|
|
10.7
|
|
“
mandatory sinking fund payment
”
|
|
11.1
|
|
“
Market Exchange Rate
”
|
|
10.15
|
|
“
New York Banking Day
”
|
|
10.16
|
|
“
Notice Agent
”
|
|
2.4
|
|
“
optional sinking fund payment
”
|
|
11.1
|
|
“
Paying Agent
”
|
|
2.4
|
|
“
Registrar
”
|
|
2.4
|
|
“
Required Currency
”
|
|
10.16
|
|
“
successor person
”
|
|
5.1
|
Section 1.3
Incorporation by Reference of Trust Indenture
Act
.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
“
Commission
” means the SEC.
“
indenture securities
” means the Securities.
“
indenture security holder
” means a Security
Holder.
“
indenture to be qualified
” means this Indenture.
“
indenture trustee
” or “
institutional
trustee
” means the Trustee.
“
obligor
” on the indenture securities means
the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.
Section 1.4
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1
Issuable in Series
.
The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided
in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the terms thereof pursuant
to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board
Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record
date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters,
provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2
Establishment of Terms
of Series of Securities
.
At or prior to the
issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2(a)
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2(b) through
2.2(u)) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution or Officers’
Certificate, and associated supplemental indenture:
(a) the title of the Series (which shall
distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the price or prices (expressed as a
percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(c) any limit upon the aggregate principal
amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7,
2.8, 2.11, 3.6 or 9.6);
(d) the date or dates on which the principal
of the Securities of the Series is payable;
(e) the rate or rates (which may be fixed
or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the
date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence
and be payable and any regular record date for the interest payable on any interest payment date;
(f) the place or places where the principal
of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered
for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;
(g) if applicable, the period or periods
within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed,
in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company
to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities
of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) the dates, if any, on which and the
price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and
other detailed terms and provisions of such repurchase obligations;
(j) if other than denominations of $1,000
and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;
(k) the forms of the Securities of the
Series and whether the Securities will be issuable as Global Securities;
(l) if other than the principal amount
thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2;
(m) the currency of denomination of the
Securities of the Series, which may be Dollars or any Foreign Currency, including, but not limited to, the ECU, and if such currency
of denomination is a composite currency other than the ECU, the agency or organization, if any, responsible for overseeing such
composite currency;
(n) the designation of the currency, currencies
or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;
(o) if payments of principal of or interest,
if any, on the Securities of the Series are to be made in one or more currencies or currency units other than that or those in
which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;
(p) the manner in which the amounts of
payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined
by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index
or financial index;
(q) the provisions, if any, relating to
any security provided for the Securities of the Series;
(r) any addition to or change in the Events
of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(s) any addition to or change in the covenants
set forth in Articles IV or V which applies to Securities of the Series;
(t) any other terms of the Securities of
the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series); and
(u) any depositaries, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed
herein.
All Securities of any one Series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above.
Section 2.3
Execution and Authentication
.
Two Officers shall sign the Securities
for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual or facsimile signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from
time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the
date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate.
The aggregate principal amount of Securities
of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except as
provided in Section 2.8.
Prior to the issuance of Securities of
any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series,
(b) an Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline
to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such
action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal
liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4
Registrar and Paying Agent
.
The Company shall maintain, with respect
to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office
or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities
of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands
to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice Agent”).
The Trustee or Notice Agent, as applicable, shall deliver such notices and demands to the Company in accordance with Section 10.2
hereof. The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company
will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar,
Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice
Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands
may be made or delivered at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time
designate one or more co-registrars, additional paying agents or notice agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain
a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series
for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any
change in the name or address of any such co-registrar, additional paying agent or notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent.
The Company hereby appoints the Trustee
the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as
the case may be, is appointed prior to the time Securities of that Series are first issued.
The Company hereby appoints The Depository
Trust Company to act as Depositary with respect to the Securities.
Section 2.5
Paying Agent to Hold
Money in Trust
.
The Company shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Security Holders of any
Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series
of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Security Holders of any Series of Securities
all money held by it as Paying Agent.
Section 2.6
Security Holder Lists
.
The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the names and addresses of Security Holders of each
Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in
writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Security
Holders of each Series of Securities.
Section 2.7
Transfer and Exchange
.
Where Securities of a Series are presented
to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities upon receipt of a Company Order.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein),
but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11,
3.6 or 9.6).
Neither the Company nor the Registrar shall
be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening
of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
Section 2.8
Mutilated, Destroyed,
Lost and Stolen Securities
.
If any mutilated Security is surrendered
to the Trustee, the Company shall execute and the Trustee, upon receipt of a Company Order, shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company
and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee, upon receipt of a Company Order, shall authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series
duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9
Outstanding Securities
.
The Securities outstanding at any time
are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company,
a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to
pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.
A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the
requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10
Treasury Securities
.
In determining whether the Holders of the
required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent
or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that the Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary Securities
.
Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee, upon receipt of a Company Order, shall authenticate temporary Securities upon
a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee,
upon receipt of a Company Order, shall authenticate definitive Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive
Securities.
Section 2.12
Cancellation
.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for registration of transfer, exchange or payment. Upon receipt of written instruction from the Company, the Trustee shall
cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled
Securities and deliver a certificate of such destruction to the Company, unless the Company otherwise directs. The Company may
not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13
Defaulted Interest
.
If the Company defaults in a payment of
interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable
on the defaulted interest, to the persons who are Security Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 10 days before the record date, the Company shall mail to the Trustee
and to each Security Holder of the Series a notice that states the record date, the payment date and the amount of interest to
be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14
Global Securities
.
(a)
Terms of Securities
. A Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series
shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or
Securities.
(b)
Transfer and Exchange
. Notwithstanding
any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall
be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the
Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency
under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officers’
Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing
in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
The Trustee shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of,
this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(c)
Legend
. Any Global Security
issued hereunder shall bear a legend in substantially the following form:
“This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the
Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to
a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”
(d)
Acts of Holders
. The Depositary,
as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e)
Payments
. Notwithstanding the
other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of
and interest, if any, on any Global Security shall be made to the Holder thereof.
(f)
Consents, Declaration and Directions
.
Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of
the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture.
Section 2.15
CUSIP Numbers
.
The Company in issuing the Securities may
use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed
only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1
Notice to Trustee
.
The Company may, with respect to any Series
of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities
or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If
a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or
part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and
the principal amount of Series of Securities to be redeemed. The Company shall give the Trustee notice at least 45 days before
the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2
Selection of Securities
to be Redeemed
.
Unless otherwise indicated for a particular
Series by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, if less than all the Securities
of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee
deems fair and appropriate and in accordance with its customary practices or the selection shall be in accordance with DTC procedures,
as applicable. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption.
The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than
$1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2(j), the minimum principal
denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series
called for redemption also apply to portions of Securities of that Series called for redemption.
Section 3.3
Notice of Redemption
.
Unless otherwise indicated for a particular
Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed.
The notice shall identify the Securities
of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying
Agent;
(d) that Securities of the Series called
for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the
Series called for redemption ceases to accrue on and after the redemption date;
(f) the CUSIP number, if any; and
(g) any other information as may be required
by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee
shall give the notice of redemption prepared by the Company, in the Company’s name and at its expense.
Section 3.4
Effect of Notice of
Redemption
.
Once notice of redemption is mailed or
published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption
date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price plus accrued interest to the redemption date.
Section 3.5
Deposit of Redemption
Price
.
On or before the redemption date, the Company
shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities
to be redeemed on that date.
Section 3.6
Securities Redeemed
in Part
.
Upon surrender of a Security that is redeemed
in part, the Trustee, upon receipt of a Company Order, shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1
Payment of Principal and Interest
.
The Company covenants and agrees for the
benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any,
on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Section 4.2
SEC Reports
.
The Company shall deliver to the Trustee
within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the
other provisions of TIA § 314(a).
Section 4.3
Compliance Certificate
.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year (which on the date hereof ends on December 31) of the Company, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that
to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the
Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.4
Stay, Extension and
Usury Laws
.
The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.5
Corporate Existence
.
Subject to Article V, the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company shall not be required
to preserve any such right, license or franchise if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof
is not adverse in any material respect to the Holders.
ARTICLE V
SUCCESSORS
Section 5.1
When Company May Merge, Etc
.
The Company shall not consolidate with
or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the Company is the surviving corporation
or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S.
domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture and
(b) immediately after giving effect to
the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee
prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary
of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officers’
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2
Successor Corporation
Substituted
.
Upon any consolidation or merger, or any
sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from
all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
.
“
Event of Default
,
”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit
of said Event of Default:
(a) default in the payment of any interest
on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless
the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of
such period of 30 days); or
(b) default in the payment of principal
of any Security of that Series at its Maturity; or
(c) default in the performance or breach
of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period
of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that Series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(d) the Company pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order
for relief against it in an involuntary case,
(iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the
benefit of its creditors, or
(v) generally is unable to pay its debts
as the same become due; or
(e) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in
an involuntary case,
(ii) appoints a Custodian of the Company
or for all or substantially all of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed
and in effect for 60 days; or
(f) any other Event of Default provided
with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.2(r).
The term “Bankruptcy Law” means
title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2
Acceleration of Maturity;
Rescission and Annulment
.
If an Event of Default with respect to
Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d)
or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities
of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of
the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of
the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the
principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of
acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any,
of Securities of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided
in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3
Collection of Indebtedness
and Suits for Enforcement by Trustee
.
The Company covenants that if
(a) default is made in the payment of any
interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal
of any Security at the Maturity thereof, or
(c) default is made in the deposit of any
sinking fund payment when and as due by the terms of a Security,
then
, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities
for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the
manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
Notwithstanding any other provision of
this Indenture, if an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by pursuing
any available remedy by proceeding at law or in equity as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 6.4
Trustee May File Proofs
of Claim
.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.8.
Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.5
Trustee May Enforce Claims Without Possession
of Securities
.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 6.6
Application of Money
Collected
.
Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due
the Trustee under Section 7.8; and
Second: To the payment of the amounts then
due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company or to such party
as a court of competent jurisdiction shall direct.
Section 6.7
Limitation on Suits
.
No Holder of any Security of any Series
shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in
principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered
to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with
such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the
outstanding Securities of that Series;
it being understood and intended that no
one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 6.8
Unconditional Right
of Holders to Receive Principal and Interest
.
Notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the
principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 6.9
Restoration of Rights
and Remedies
.
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.10
Rights and Remedies
Cumulative
.
Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 6.11
Delay or Omission
Not Waiver
.
No delay or omission of the Trustee or
of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
Section 6.12
Control by Holders
.
The Holders of not less than a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such Series, provided that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture,
(b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 7.1,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
Section 6.13
Waiver of Past Defaults
.
The Holders of not less than a majority
in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series
waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal
of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted
from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.14
Undertaking for Costs
.
All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or
after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee
.
(a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an
Event of Default:
(i) The Trustee need perform only those
duties that are specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein,
upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture;
however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to
determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect
of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with
respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance
with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that
in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any
duty or exercise any right or power unless it receives security or indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall
require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or
in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar, the
Notice Agent, any agent and any authenticating agent shall be entitled to the protections, immunities and standard of care as are
set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee.
Section 7.2
Rights of Trustee
.
(a) The Trustee may rely on and shall be
protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains
from acting, it may require an Officers’ Certificate or an Opinion of Counsel, or both. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. No such
Officers’ Certificate or Opinion of Counsel shall be at the expense of the Trustee. Any request or direction of the Company
mentioned herein shall be sufficiently evidenced by an Officers’ Certificate.
(c) The Trustee may act through agents
and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed
an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided
that the Trustee’s conduct does not constitute negligence or bad faith. The Trustee shall not be liable for any special,
punitive or consequential damages, even if they were reasonably foreseeable.
(e) The Trustee may consult with counsel
of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder, and the Trustee may conclusively rely on any such advice or
Opinion of Counsel.
(f) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to
have notice of any Default or Event of Default (other than a payment default under Section 6.1 or 6.2) unless a Responsible
Officer of the Trustee has received written notice of any event which is in fact such a default at the Corporate Trust Office of
the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) The rights, privileges, protections,
immunities and benefits given to the Trustee, including without limitation its right to be indemnified, are extended to, and shall
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(j) The Trustee may request that the Issuer
deliver an Officers’ Certificate setting forth the names of individuals and titles of officers authorized at such time to
take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to
sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered
and not superseded.
(k) The Trustee shall have no duty to inquire
as to or monitor the performance of the Issuer with respect to the covenants contained in Article IV.
(l) The Trustee shall not be required to
give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture.
(m) Nothing herein shall be deemed to require
the Trustee to submit to the jurisdiction or venue of a non-U.S. court.
Section 7.3
Force Majeure
.
(a) The Trustee shall have no liability
for delays or inability to perform its duties hereunder due to
forces majeure
, events beyond its control, such as (but not
exclusively) civil unrest, earthquakes, hurricanes or other natural disasters, floods, utility failures, transmission interruptions,
power failures, wars, governmental declarations or Acts of God; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(b) Delivery of reports or information
by the Company shall not be deemed to confer actual or constructive knowledge or notice on the Trustee with respect to a Default
or Event of Default, or otherwise.
Section 7.4
Individual Rights of
Trustee
.
The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with
the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.11 and 7.12.
Section 7.5
Trustee’s Disclaimer
.
The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the
proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.6
Notice of Defaults
.
If a Default or Event of Default occurs
and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail (or deliver notice subject to the applicable procedures of the Depositary or relevant clearing system) to each
Security Holder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or,
if later, after a Responsible Officer of the Trustee has written notice of such Default or Event of Default. Except in the case
of a Default or Event of Default in payment of principal of or interest on any Security of any Series, or in the payment of any
sinking fund installment, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of
its Responsible Officers in good faith determines that withholding the notice is in the interests of Security Holders of that Series.
Section 7.7
Reports by Trustee
to Holders
.
Within 60 days after May 15 in
each year, the Trustee shall transmit by mail to all Security Holders, as their names and addresses appear on the register kept
by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the time of its
mailing to Security Holders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series
are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.8
Compensation and Indemnity
.
The Company shall pay to the Trustee from
time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the
Trustee and any predecessor Trustee against any loss, liability or expense (including the cost of defending itself) incurred by
it except as set forth in the next paragraph in the performance of the Trustee duties under this Indenture as Trustee or Agent.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity; provided, however, that failure to
so notify the Company shall not relieve it of its obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense; provided, however, the Trustee may conduct its own defense if there is a conflict of interest between
the interests of the Company and those of the Trustee. The Trustee may have one separate counsel (in addition to local counsel,
if applicable) and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and Agents or agents of the Trustee.
The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder, Agent or
agent of the Trustee to the extent it is attributed to its own negligence or willful conduct as determined by a court of competent
jurisdiction in a final, non-appealable order.
To secure the Company’s payment obligations
in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected
by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The provisions of this Section shall survive
the termination of this Indenture and the resignation and removal of the Trustee.
Section 7.9
Replacement of Trustee
.
A resignation or removal of the Trustee
and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with respect to
the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series
by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series
if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt
or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one
year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to
the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee upon payment
of its fees and expenses then unpaid shall transfer all property held by it as Trustee to the successor Trustee subject to the
lien provided for in Section 7.8, the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting
as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Security Holder of each such
Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.9, the Company’s obligations under Section 7.8
hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to
such replacement.
Section 7.10
Successor Trustee
by Merger, etc
.
If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
Section 7.11
Eligibility; Disqualification
.
This Indenture shall always have a Trustee
who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $150,000 as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA § 310(b).
Section 7.12
Preferential Collection of Claims Against
Company
.
The Trustee is subject to TIA § 311(a),
excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Order
cease to be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) have been called for redemption or
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, or
(D) are deemed paid and discharged pursuant
to Section 8.3, as applicable;
and the Company, in the case of (A), (B) or
(C) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable
on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.8, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall
survive.
Section 8.2
Application of Trust
Funds; Indemnification
.
(a) Subject to the provisions of Section 8.5,
all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the
Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to
the Company from time to time upon Company Request any U.S. Government Obligations or Foreign Government Obligations or money held
by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government
Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations held under this Indenture.
Section 8.3
Legal Defeasance of
Securities of any Series
.
Unless this Section 8.3 is otherwise
specified, pursuant to Section 2.2(t), to be inapplicable to Securities of any Series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date
of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding
Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities
of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of
and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal
or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities
of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities
of such Series;
(b) the provisions of Sections 2.4,
2.7, 2.8, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and immunities
of the Trustee hereunder;
provided that, the following conditions
shall have been satisfied:
(d) the Company shall have deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders
of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency),
money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance
with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later
than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge
each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities
of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
(e) such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(f) no Default or Event of Default with
respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(g) the Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (i) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the Company shall have delivered to
the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the
Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(i) the Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating
to the defeasance contemplated by this Section have been complied with.
Section 8.4
Covenant Defeasance
.
Unless this Section 8.4 is otherwise
specified pursuant to Section 2.2(t) to be inapplicable to Securities of any Series, the Company may omit to comply with respect
to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, and 5.1
as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or
an Officers’ Certificate delivered pursuant to Section 2.2(t) (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event
specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.2(r) and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
(a) With reference to this Section 8.4,
the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as
trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal
in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking
fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking
fund payments are due;
(b) Such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(c) No Default or Event of Default with
respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
(d) The Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance
had not occurred;
(e) The Company shall have delivered to
the Trustee an Officers’ Certificate stating the deposit was not made by the Company with the intent of preferring the Holders
of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company; and
(f) The Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5
Repayment to Company
.
The Trustee and the Paying Agent shall
pay to the Company upon written request any money held by them for the payment of principal and interest that remains unclaimed
for two years. After that, Security Holders entitled to the money must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another person.
ARTICLE IX
SUPPLEMENTAL INDENTURES, AMENDMENTS AND
WAIVERS
Section 9.1
Without Consent of Holders
.
The Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any Security Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to make any change that does not adversely
affect the rights of any Security Holder;
(e) to provide for the issuance of and
establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(f) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee; or
(g) to comply with requirements of the
SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2
With Consent of Holders
.
The Company and the Trustee may enter into
a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer
or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of
the Security Holders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal
amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture
or the Securities with respect to such Series.
It shall not be necessary for the consent
of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby, a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3
Limitations
.
Without the consent of each Security Holder
affected, an amendment or waiver may not:
(a) reduce the principal amount of Securities
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time
for payment of interest (including default interest) on any Security;
(c) reduce the principal or change the
Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount of Discount
Securities payable upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default
in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities
of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver
of the payment default that resulted from such acceleration);
(f) make the principal of or interest,
if any, on any Security payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8,
6.13 or 9.3 (this sentence); or
(h) waive a redemption payment with respect
to any Security, provided that such redemption is made at the Company’s option.
Section 9.4
Compliance with Trust
Indenture Act
.
Every amendment or waiver to this Indenture
or the issuance of and establishment of the form and terms and conditions of Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5
Revocation and Effect
of Consents
.
Until an amendment is set forth in a supplemental
indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental
indenture or the date the waiver becomes effective.
Any amendment or waiver once effective
shall bind every Security Holder of each Series affected by such amendment or waiver unless it is of the type described in any
of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security.
Section 9.6
Notation on or Exchange
of Securities
.
The Trustee may place an appropriate notation
about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of
that Series may issue and the Trustee shall authenticate upon receipt of a Company Order new Securities of that Series that reflect
the amendment or waiver.
Section 9.7
Trustee Protected
.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely
affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.1
Trust Indenture Act Controls
.
If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2
Notices
.
Any notice or communication by the Company
or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing, in the English language,
referencing this Indenture and the applicable securities or series of securities, and delivered in person or mailed by first-class
mail, or by facsimile transmission:
if to the Company:
China Ceramics Co., Ltd.
Junbing Industrial Zone, Anhai, Jinjiang
City
Fujian Province, PRC
Attention: Chief Financial Officer
Fax: +86 (595) 8576 5059
if to the Trustee:
[ ]
Fax No: [ ]
Attention: [ ]
The Company or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Security
Holder shall be mailed by first-class mail to his address shown on the register kept by the Registrar or delivered subject to the
applicable procedures of Depositary or relevant clearing system. Failure to mail a notice or communication to a Security Holder
of any Series or any defect in it shall not affect its sufficiency with respect to other Security Holders of that or any other
Series.
If a notice or communication is mailed
or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Security Holder receives
it.
If the Company mails a notice or communication
to Security Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3
Communication by Holders
with Other Holders
.
Security Holders of any Series may communicate
pursuant to TIA § 312(b) with other Security Holders of that Series or any other Series with respect to their rights under
this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA § 312(c).
Section 10.4
Certificate and Opinion
as to Conditions Precedent
.
Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5
Statements Required
in Certificate or Opinion
.
Each certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §
314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making
such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature
and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Section 10.6
Rules by Trustee and
Agents
.
The Trustee may make reasonable rules for
action by or a meeting of Security Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7
Legal Holidays
.
Unless otherwise provided by Board Resolution,
Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8
No Recourse Against
Others
.
A director, officer, employee or stockholder,
as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their creation. Each Security Holder by accepting a Security
waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9
Counterparts
.
This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.10
Governing Laws
.
THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11
No Adverse Interpretation
of Other Agreements
.
This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 10.12
Successors
.
All agreements of the Company in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13
Severability
.
In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 10.14
Table of Contents,
Headings, Etc
.
The Table of Contents, Cross Reference
Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15
Securities in a Foreign
Currency or in ECU
.
Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with
respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of
a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency
other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to be outstanding
for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange
Rate at such time. For purposes of this Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however,
in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or
any successor thereto) as published in the Official Journal of the European Union (such publication or any successor publication,
the “Journal”). If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or,
in the case of ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or,
in the case of ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency
in question or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of exchange as the Trustee,
upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the
Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes
and irrevocably binding upon the Company and all Holders.
Section 10.16
Judgment Currency
.
The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York
the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments
in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether
or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday,
Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or
executive order to close.
ARTICLE XI
SINKING FUNDS
Section 11.1
Applicability of Article
.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any
form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund
payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2
Satisfaction of Sinking
Fund Payments with Securities
.
The Company may, in satisfaction of all
or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities
(1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which
such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that
such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’
Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as
a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount
of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such
cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to
the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities
of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to
the Company.
Section 11.3
Redemption of Securities
for Sinking Fund
.
Not less than 45 days (unless otherwise
indicated in the Board Resolution, supplemental indenture hereto or Officers’ Certificate in respect of a particular Series
of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to
the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’
Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided
in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
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China Ceramics Co., Ltd.
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By:
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Name:
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Title:
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[ ],
as Trustee
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By:
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Name:
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Title:
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[
Signature Page to Indenture
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