As filed with the Securities and Exchange
Commission on February 23, 2021
Registration No. 333-[●]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
POWERBRIDGE TECHNOLOGIES CO., LTD.
(Exact name of registrant as specified in
its charter)
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Cayman Islands
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N/A
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1st Floor, Building D2, Southern Software
Park
Tangjia Bay, Zhuhai, Guangdong 519080,
China
Tel: +86-756-339-5666
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19711
(Name, address including
zip code, and telephone number, including area code, of agent for service)
With copies to:
Joan Wu Esq.
Hunter Taubman Fischer & Li, LLC
800 Third Avenue, Suite 2800
New York, NY 10022
Tel: (212) 530-2210
Facsimile: (212) 202-6380
Approximate date of commencement of
proposed sale to the public: 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, check the following box. ☒
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 of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.D. 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.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check
mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth
company ☒
If an emerging
growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
†
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards
Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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Primary Offering
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Ordinary Share, par value $0.00166667 per share (1)
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(2)
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(3)
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Debt Securities (1)
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(2)
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(3)
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Warrants (1)
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(2)
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(3)
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Rights (1)
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(2)
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(3)
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Units (1)
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(2)
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(3)
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Total Primary Offering (4)
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$
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200,000,000
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$
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21,820
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Secondary Offering
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(6)
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(7)
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Ordinary Share, par value $0.00166667 per share (5)(8)
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8,800,000
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$
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4.075
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$
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35,860,000
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$
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3,913
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Total
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$
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235,860,000
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$
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25,733
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(1)
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With respect to the securities issuable in the primary offering, the securities being registered consist of such indeterminate number of ordinary shares, par value $0.00166667 per share (“Ordinary Shares”), as may be determined from time to time at indeterminate prices. The securities registered for the primary offering also include such indeterminate number of Ordinary Share. In no event will the aggregate maximum offering price of all securities issued in the primary offering pursuant to this registration statement exceed $200,000,000.
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(2)
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Not required to be included in accordance with General Instruction II.D. of Form F-3 under the Securities Act.
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(3)
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With respect to the primary offering, the proposed maximum offering price per security and the proposed maximum aggregate offering price will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form F-3 under the Securities Act.
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(4)
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Calculated pursuant to Rule 457(o) under the Securities act of 1933, as amended.
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(5)
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As described in greater detail in the prospectus contained in this registration statement, the Ordinary Shares to be offered for resale by selling shareholders include an aggregate of 8,800,000 Ordinary Shares issued to the selling shareholders in connection with private transactions.
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(6)
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All shares registered pursuant to the Secondary Offering of this registration statement are to be offered for resale by the Selling Shareholders (defined below). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers such indeterminate number of additional shares of the registrant’s Ordinary Shares, issued to prevent dilution resulting from share splits, share dividends or similar events. No additional consideration will be received for such additional number of shares of common share, and therefore no registration fee is required pursuant to Rule 457(i) under the Securities Act.
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(7)
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Calculated pursuant to Rule 457(g) under the Securities Act.
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(8)
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The offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act with respect to the Ordinary Shares registered hereunder, based on the price of $4.07, which was the average of the high and low prices reported on the Nasdaq Capital Market February 16, 2021.
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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 Commission acting pursuant
to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus, which covers the offering, issuance and sales by us of up to $200,000,000 in the aggregate of the securities identified above from time to time in one or more offerings;
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A resale prospectus which covers offer and resale of up to an aggregate of 8,800,000 ordinary shares, par value $$0.00166667 held by certain Selling Shareholders; and
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a sales agreement prospectus covering the offer, issuance and sale by us of up to a maximum aggregate offering price of up to $30 million of our ordinary shares that may be issued and sold from time to time under a sales agreement with A.G.P / Alliance Global Partners (the “Sales Agreement”).
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The base prospectus
immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will
be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus.
The $30 million of ordinary shares that may be offered, issued and sold under the sales agreement prospectus is included in the
$200,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales
Agreement, any portion of the $30 million included in the sales agreement prospectus that is not sold pursuant to the Sales Agreement
will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the Sales Agreement,
the full $30 million of securities may be sold in other offerings pursuant to the base 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 it is not
soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
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SUBJECT
TO COMPLETION
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DATED
FEBRUARY 23, 2021
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PROSPECTUS
POWERBRIDGE TECHNOLOGIES CO., LTD.
$200,000,000
Ordinary Share
Preferred share
Debt Securities
Warrants
Rights
Units
8,800,000 Ordinary Shares Offered by
Selling Shareholders
We may offer to the
public from time to time in one or more series or issuances of our ordinary shares, par value $$0.00166667, debt securities, warrants
to purchase our Ordinary Shares, debt securities consisting of debentures, notes or other evidences of indebtedness, units consisting
of a combination of the foregoing securities, or any combination of these securities
Selling Shareholders
(defined as below) may also offer up to an aggregate of 8,800,000 Ordinary Shares, par value $$0.00166667 (“Shares”)
currently held by such Selling Shareholders acquired pursuant to certain securities purchase agreement (the “SPA”)
dated August 24, 2020, by and among the Company and such Selling Shareholders, where the Company sold the Shares at a per share
purchase price of $2.00 to the Selling Shareholders. The holders of the Shares are each referred to herein as a “Selling
Shareholder” and collectively as the “Selling Shareholders.” We have agreed to bear all of the expenses incurred
in connection with the registration of the Shares. The Selling Shareholders will pay or assume discounts, commissions, fees of
underwriters, selling brokers or dealer managers and similar expenses, if any, incurred for the resale the Shares.
The securities may
be sold by us or the Selling Shareholders to or through underwriters or dealers, directly to purchasers or through agents designated
from time to time. The Selling Shareholders identified in this prospectus, or their respective transferees, pledgees, donees or
other successors-in-interest, may offer the Shares through public or private transactions at prevailing market prices, at prices
related to prevailing market prices or at privately negotiated prices. For additional information on the methods of sale, see the
section entitled “Plan of Distribution” on page 15. For a list of the Selling Shareholders, see the section
entitled “Selling Shareholders” on page 13.
The Selling Shareholders
may sell any, all or none of the securities offered by this prospectus, and we do not know when or in what amount the Selling Shareholders
may sell their Shares hereunder following the effective date of this registration statement.
Our Ordinary Share
is currently listed on the Nasdaq Capital Market under the symbol “PBTS.” On February 22, 2021, the last reported sale
price of our Ordinary Share on the Nasdaq Capital Market was $4.37 per share. The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on the Nasdaq Capital Market or other securities exchange of the securities
covered by the prospectus supplement.
If any underwriters
are involved in the sale of the securities with respect to which this prospectus is being delivered, the names of such underwriters
and any applicable discounts or commissions and over-allotment options will be set forth in the applicable prospectus supplement.
This prospectus also describes the general manner in which the Shares may be offered and sold. If necessary, the specific manner
in which the Shares may be offered and sold will be described in a supplement to this prospectus.
Investing in our
Ordinary Share involves risks. You should carefully review the risks described under the heading “Risk Factors” beginning
on page 5 and in the documents which are incorporated
by reference herein before you invest in our securities.
Neither the Securities and
Exchange Commission, Cayman Islands, nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February
23, 2021.
TABLE OF CONTENTS
You should rely only on the information
contained or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized any person to provide
you with different or additional information. If anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities in any jurisdiction
where the offer or sale is not permitted. You should assume that the information appearing in this prospectus or any prospectus
supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date
on the front of those documents only. Our business, financial condition, results of operations and prospects may have changed since
those dates.
ABOUT THIS PROSPECTUS
This prospectus is
a part of a registration statement that we filed with the Securities and Exchange Commission, or the Commission, using a “shelf”
registration process. Under this shelf registration process, we may offer to sell any of the securities, or any combination of
the securities, described in this prospectus, in each case in one or more offerings, up to a total amount of $200,000,000 and the
Selling Shareholders may offer from time to time up to an aggregate of 8,800,000 Ordinary Shares, par value $$0.00166667. You should
rely only on the information contained in this prospectus and the related exhibits, any prospectus supplement or amendment thereto
and the documents incorporated by reference, or to which we have referred you, before making your investment decision. Neither
we nor the Selling Shareholders have authorized anyone to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. This prospectus, any prospectus supplement or amendments thereto do not
constitute an offer to sell, or a solicitation of an offer to purchase, the Ordinary Share offered by this prospectus, any prospectus
supplement or amendments thereto in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer
or solicitation of an offer in such jurisdiction. You should not assume that the information contained in this prospectus, any
prospectus supplement or amendments thereto, as well as information we have previously filed with the U.S. Securities and Exchange
Commission (the “SEC”), is accurate as of any date other than the date on the front cover of the applicable document.
If necessary, the specific
manner in which the securities may be offered and sold will be described in a supplement to this prospectus, which supplement may
also add, update or change any of the information contained in this prospectus. To the extent there is a conflict between the information
contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided
that if any statement in one of these documents is inconsistent with a statement in another document having a later date-for example,
a document incorporated by reference in this prospectus or any prospectus supplement-the statement in the document having the later
date modifies or supersedes the earlier statement.
Neither the delivery
of this prospectus nor any distribution of Ordinary Share pursuant to this prospectus shall, under any circumstances, create any
implication that there has been no change in the information set forth or incorporated by reference into this prospectus or in
our affairs since the date of this prospectus. Our business, financial condition, results of operations and prospects may have
changed since such date.
When used herein, unless
the context requires otherwise, references to the “Powerbridge,” “Company,” “we,” “our”
and “us” refer to Powerbridge Technologies Co., Ltd., a Cayman Islands exempted company.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, the
applicable prospectus supplement or amendment and the information incorporated by reference in this prospectus contain various
forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities and Exchange
Act of 1934, as amended (the “Exchange Act”), which represent our expectations or beliefs concerning future events.
Forward-looking statements include statements that are predictive in nature, which depend upon or refer to future events or conditions,
and/or which include words such as “believes,” “plans,” “intends,” “anticipates,”
“estimates,” “expects,” “may,” “will” or similar expressions. In addition, any
statements concerning future financial performance, ongoing strategies or prospects, and possible future actions, which may be
provided by our management, are also forward-looking statements. Forward-looking statements are based on current expectations and
projections about future events and are subject to risks, uncertainties, and assumptions about our company, economic and market
factors, and the industry in which we do business, among other things. These statements are not guarantees of future performance,
and we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future
events, or otherwise, except as required by law. Actual events and results may differ materially from those expressed or forecasted
in forward-looking statements due to a number of factors. Factors that could cause our actual performance, future results and actions
to differ materially from any forward-looking statements include, but are not limited to, those discussed under the heading “Risk
Factors” in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. The forward-looking
statements in this prospectus, the applicable prospectus supplement or any amendments thereto and the information incorporated
by reference in this prospectus represent our views as of the date such statements are made. These forward-looking statements should
not be relied upon as representing our views as of any date subsequent to the date such statements are made.
OUR COMPANY
This summary highlights information
contained in the documents incorporated herein by reference. Before making an investment decision, you should read the entire prospectus,
and our other filings with the SEC, including those filings incorporated herein by reference, carefully, including the sections
entitled “Risk Factors” and “Special Note Regarding Forward-Looking Statements.” Unless otherwise indicated
or the context otherwise requires, references in this prospectus to “we,” “our,” “us,” and
other similar terms refer to Powerbridge Technologies Co., Ltd. and its consolidated subsidiaries.
Overview
We are a provider of
software application and technology solutions and services to corporate and government customers primarily located in China. We
introduced global trade software applications when we launched our operations in 1997 with a vision to make global trade operations
easier for our customers. Since our inception, we have continued to innovate by developing technologies that enable us to successfully
deliver a series of solutions and services that address the evolving and changing needs of our corporate and government customers.
Our mission is to make global trade easier by empowering all players in the ecosystem.
With the rapid growth
of advertisement and media industrial in recent years, we believe that there is a substantial market opportunity to operate an
out-of-home digital display advertising and media technology platform in the Greater Bay Area of China. We also see the potential
to further expand our business into such industry, which could be supported by the success of our own Big Data platforms/products.
As a result, we started to implement our plan to build a network of digital display and operate an advertisement platform since
October 2020 by using our Big Data platform and services.
Our customers
are corporate and government organizations engaged in global trade. Our corporate customers are import and export companies, manufacturers
engaged in international trade, as well as logistics and other service providers. Our government customers include customs and
other government agencies that oversee the flow of goods and services across borders, as well as government authorities and organizations
that manage and operate free trade and bonded trade zones, ports and terminals, and other international trade facilities.
Global trade involves
complicated and cumbersome processing, manual handling of voluminous documents, extended and complex cross-organization workflows
as well as a great number of business and government players in the global trade ecosystem. Our customers are facing increasing
challenges as the world’s trade ecosystems continue to grow in size and complexity. Costs associated with global trade, such
as logistics performance, border control and international connectivity remain high. Potential savings from more collaborative
and efficient trade processes could reduce the costs of global trade significantly. The need for greater efficiency and cost savings
are driving the transformative shift for participants in global trade to become more connected and collaborative.
Our comprehensive and
robust solutions and services include Powerbridge System Solutions and Powerbridge SaaS Services with
more than 50 solutions and services deployable on premise and in the cloud. Leveraging our deep domain knowledge and strong industry
experience, we provide a series of differentiated and robust solutions and services that address the mission critical needs of
our corporate and government customers, enabling them to handle and simplify the complexities of global trade operations, logistics
and compliance.
We provide Powerbridge
System Solutions to our corporate and government customers engaged in global trade, including businesses and manufacturers
across a broad range of industries, government agencies and regulatory authorities, as well as global trade logistics and other
service providers. Powerbridge System Solutions enable our customers to streamline their trade operations, trade logistics
and regulatory compliance, consisting of Trade Enterprise Solutions and Trade Compliance Solutions which have been
in service since our first introduction twenty years ago and Import & Export Loan and Insurance Processing which have
recently been introduced to a selected group of customers.
We began offering our
Powerbridge SaaS Services (software-as-a-service) in 2016 and are continually developing and expanding our SaaS services
that provide our corporate and government customers with significant benefits, including better use of resources, a lower cost
of operations, easier document handling, faster processing time as well as higher logistics and compliance connectivity and efficiency.
Powerbridge SaaS Services include Logistics Service Cloud and Trade Zone Operations Cloud which are in service,
and Inward Processed Manufacturing Cloud, Cross-Border eCommerce Cloud and Import & Export Loan and Insurance Processing
Service Cloud which are in development.
We have begun offering
our cloud-based Powerbridge BaaS Services (blockchain-as-a-service) with designated use case for limited government
customers since June 2019 and we have not generated any revenue from it. We continue developing our BaaS Services for
market commercialization. Blockchain technology is emerging as a major disruptive force across many industries including those
involved in global trade. We believe that blockchain technology could allow our customers to conduct business in more synchronized
and collaborative ways to substantially increase operational efficiency and reduce trade costs across the global trade supply chain. Powerbridge
BaaS Service includes Compliance Blockchain Services and Supply Chain Blockchain Services.
Our solutions and services
are built from our multiple proprietary technology platforms which are developed based on industry leading open source infrastructure
technologies. Our technology platforms include Powerbridge System Platform and Powerbridge SaaS Platform,
which are designed for high-performance reliability, flexibility and scalability, allowing us to expand our solutions and services
rapidly and efficiently to consistently address the needs of our corporate and government customers. Our Powerbridge BaaS
Platform is in development and our BaaS services will be built on top of our Powerbridge Blockchain Platform that
is designed to provide high scalability and performance characteristics, consisting of multiple technology engines that support
the various business component models specific for trade transaction, trade logistics and regulatory compliance in global trade.
We intend to continue
leveraging our industry expertise and product knowledge with the best use of emerging and disruptive technologies such as big data,
artificial intelligence and Internet of Things to enhance our core technology capabilities and continually increase the scope of
our solutions and services to our customers.
Expansion Into Out-Of-Home Advertising
and Media
Since October 2020,
we started to implement our plan to build a network of digital display such as LCD screens and operate an advertisement platform
in Shenzhen initially, and then expand to the Greater Bay Area of China. We believe that there is a substantial market opportunity
to operate an out-of-home digital display advertising and media technology platform in the Greater Bay Area of China. We will focus
on display advertising in various high traffic advertising locations such as residential and office buildings, commercial parking
garages, and elevators in residential and office buildings.
We closed on a $50
million Note financing on October 27, 2020, which is in addition to the $17.5 million raised on August 24, 2020 in a private placement
of ordinary shares, par value $0.00166667. The funds raised are being used as prepayment for acquiring the right to operate and
publish advertisements at certain advertising space, as an efficient way of accelerating the Company’s entrance into the
out-of-home digital display advertising and media business.
On September 25, 2020,
Shenzhen Honghao Internet Technology Co. Ltd. (“Honghao”), a wholly-owned subsidiary of the Company, entered into a
leasing agreement (the “Original Leasing Agreement”) with Shenzhen Kezhi Technology Co., Ltd., a company incorporated
under the PRC laws (“Kezhi”), pursuant to which, Kezhi agreed to transfer the right to operate and publish advertisements
at certain advertising space it leases or controls in certain shopping centers in Shenzhen, Guangdong, to Honghao. No less than
75% of the advertising space as provided in the Original Leasing Agreement shall be delivered within 6 months and the remainder
shall be delivered within 12 months following the date of the Original Leasing Agreement. The Original Leasing Agreement became
effective on October 1, 2020 and shall expire on September 30, 2032.
Honghao agreed to pay
an aggregate rent of RMB150 million (approximately $22 million) within 3 months of the date of the Original Leasing Agreement.
Additionally, Honghao agreed to pay RMB10 million (approximately $1.67 million) as security deposit within 3 business days after
the date of the Original Leasing Agreement. Kezhi agreed to pledge certain Hainan Huanghua pear furniture it owns and currently
valued for RMB150 million (the “Collateral”) as guarantee for the rent payment made by Honghao pursuant to a separate
guarantee agreement to be agreed upon by and between Honghao and Kezhi. The parties agreed the Collateral shall be pledged for
the entire term of the lease and in the event the value of the Collateral is determined less than RMB150 million anytime during
the term of the guaranty, Kezhi shall provide additional collateral within three months of such determination to make sure that
aggregate value of the Collateral maintains at RMB150 million.
On November 20, 2020,
Honghao and Kezhi entered into a supplemental agreement to the Leasing Agreement (the “Supplemental Agreement”, together
with the Original Leasing Agreement, the “Leasing Agreement”), pursuant to which, Kezhi agreed to transfer the right
to operate and publish advertisements at certain additional advertising space it leased or controls in several urban villages in
Shenzhen, Guangdong, to Honghao.
Given that there was
no transfer of the right to operate and publish advertisements between October 1, 2020, the effective date of the Original Leasing
Agreement, and the date of the Supplemental Agreement, both parties agreed to change the effective date of the Original Leasing
Agreement from October 1, 2020 to January 1, 2021, which shall expire on December 31, 2040.
Honghao and Kezhi also
agreed to increase the rent from RMB150 million (approximately $22 million) to RMB 470 million (approximately $71 million) as consideration
for all the advertising space, the payment of which shall be made within 3 months of the date of the Supplemental Agreement. Accordingly,
Kezhi agreed to increase the value of the original collateral as provided in the Original Leasing Agreement from RMB150 million
to RMB 470 million. Additionally, both parties agreed to change the original payment schedule of the security deposit in an amount
of RMB10 million (approximately $1.67 million) as set forth in the Original Leasing Agreement from 3 business days after the date
of the Original Leasing Agreement to 3 business days after the date of the Supplemental Agreement.
Additionally, the Supplemental
Agreement provided the advertising space delivery schedule with at least 50% of the total advertising space to be delivered by
December 31, 2021 and the remainder to be delivered by December 31, 2022 (the “Delivery Schedule”). In the event Kezhi
fails to deliver the advertising space according to the Delivery Schedule, Honghao shall have the right to terminate the Leasing
Agreement and have the rent returned in full as well as demand damages due to Kezhi’s default. Furthermore, both parties
agreed that Honghao shall not be liable for any disputes, conflicts or lawsuits arising between Kezhi and any third party concerning
the advertising space provided thereof (the “Third Party Disputes”). In the event Kezhi is unable to continue to perform
all or part of its obligations under the Leasing Agreement due to third party disputes, Kezhi shall manage to locate similar replacement
of advertising space for Honghao within one month. The parties also agreed on the parties’ obligations to seek regulatory
approval to publish the advertisements, safe operation of the advertisement space, force majeure and other matters
customary to lease agreement of such nature.
As of the date of this
prospectus, we have not started the management of digital displays and have not generated any revenue under the outdoor advertising
business. We plan to initiate our outdoor advertising business in the second quarter of 2021, and expect to manage a network of
30,000 digital displays such as LCD screens as well as operate an advertisement platform in Guangdong province, China. We are partnered
with Kezhi, an advertising company in Shenzhen, to install and provide maintenance service for the digital displays while we will
operate the advertisement system by using our big data platform. We expect to generate our revenue from the monthly advertisement
fees charged to the advertisers. Supported by our big data platform, we are able to identify the most popular advertisements at
a given time and location. With such analysis result, we can help our customers to identify the place and time which attract the
most attention to their advertisements.
The following diagram
illustrates our current corporate structure:
As of the date of this
prospectus, Ningbo Powerbridge Pet Products Cross-border E-commerce Service Co., Ltd is dormant and has no operation.
Corporate Information
Our principal executive
office is located at 1st Floor, Building D2, Southern Software Park, Tangjia Bay, Zhuhai, Guangdong 519080, China. Our telephone
number is +86-756-339-5666. We maintain a website at www.powerbridge.com that contains information about our Company, though no
information contained on our website is part of this prospectus.
ABOUT
THE SECONDARY OFFERING
The secondary offering of this prospectus
relates to the offer and resale by the Selling Shareholders of an aggregate of 8,800,000 Ordinary Shares. All of the Ordinary Shares
will be sold by the Selling Shareholders. The Selling Shareholders may sell the Ordinary Shares from time to time at prevailing
market prices or at privately negotiated prices.
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Ordinary Share Offered by the Selling Shareholders:
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8,800,000 Ordinary Shares.
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Ordinary Share Outstanding on February 22, 2021:
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45,777,318 Ordinary Shares
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Use of Proceeds:
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We will not receive any proceeds from the sale of shares by the Selling Shareholders. See the “Use of Proceeds” section beginning on page 14.
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Risk Factors:
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An investment in the Ordinary Shares offered under this prospectus is highly speculative and involves substantial risk. Please carefully consider the “Risk Factors” section on page 5 and other information in this prospectus for a discussion of risks. Additional risks and uncertainties not presently known to us or that we currently deem to be immaterial may also impair our business and operations.
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Nasdaq Symbol:
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PBTS
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RISK FACTORS
An investment in our
Ordinary Share involves significant risks. You should carefully consider the risk factors contained in any prospectus supplement
and in our filings with the SEC, as well as all of the information contained in this prospectus and the related exhibits, any prospectus
supplement or amendments thereto, and the documents incorporated by reference herein or therein, before you decide to invest in
our Ordinary Share. Our business, prospects, financial condition and results of operations may be materially and adversely affected
as a result of any of such risks. The value of our Ordinary Share could decline as a result of any of these risks. You could lose
all or part of your investment in our Ordinary Share. Some of our statements in sections entitled “Risk Factors”
are forward-looking statements. The risks and uncertainties that we have described are not the only ones that we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects,
financial condition and results of operations.
In addition to the
risk factors referenced above, as described in our most recent annual report on Form 20-F, we want to disclose the additional risk
factors below.
Risks Relating
to Our Advertising and Media Business
We have
a limited operating history in our advertising and media business, which may make it difficult for you to evaluate our business
and prospects.
Since October 2020,
we started to implement our plan to build a network of digital display such as LCD screens and operate an advertisement platform
in Shenzhen initially, and then expand to the Greater Bay Area of China. On September 25, 2020, Shenzhen Honghao Internet Technology
Co. Ltd. (“Honghao”), the wholly-owned subsidiary of the Company, entered into a leasing agreement (the “Original
Leasing Agreement”) with Shenzhen Kezhi Technology Co., Ltd., a company incorporated under the PRC laws (“Kezhi”),
pursuant to which, Kezhi agreed to transfer the right to operate and publish advertisements at certain advertising space it leases
or controls in certain shopping centers in Shenzhen, Guangdong, to Honghao. On November 20, 2020, Honghao and Kezhi entered into
a supplemental agreement to the Leasing Agreement (the “Supplemental Agreement”), pursuant to which, Kezhi agreed to
transfer the right to operate and publish advertisements at certain additional advertising space it leased or controls in several
urban villages in Shenzhen, Guangdong, to Honghao.
Accordingly,
we have a very limited operating history for our current operations of our advertising and media business upon which you can evaluate
the viability and sustainability of our business and its acceptance by advertisers and consumers. It is also difficult to evaluate
the viability of our use of advertising displays and our use of advertising poster frames in residential complexes because we do
not have sufficient experience to address the risks frequently encountered by early stage companies using new forms of advertising
media and entering new and rapidly evolving markets. These circumstances may make it difficult for you to evaluate our business
and future operation.
Advertising
is particularly sensitive to changes in economic conditions and advertising trends.
Demand
for advertising time slots and advertising frame space on our networks, and the resulting advertising spending by our clients,
is particularly sensitive to changes in general economic conditions and advertising spending typically decreases during periods
of economic downturn. Advertisers may reduce the money they spend to advertise on our networks for a number of reasons, including:
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a
general decline in economic conditions;
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a
decline in economic conditions in the particular cities where we conduct business;
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a
decision to shift advertising expenditures to other available advertising media; or
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a
decline in advertising spending in general.
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A
decrease in demand for advertising media in general and for our advertising services in particular would materially and adversely
affect our ability to generate revenue from our advertising services, and our financial condition and results of operations.
Our operating
results of our advertising and media business are difficult to predict and may fluctuate significantly from period to period in
the future.
Our
operating results of our advertising and media business are difficult to predict and may fluctuate significantly from period to
period based on the seasonality of consumer spending and corresponding advertising trends in China. As a result, you may not be
able to rely on period to period comparisons of our operating results as an indication of our future performance. Factors that
are likely to cause our operating results to fluctuate include the seasonality of advertising spending in China, a deterioration
of economic conditions in China and potential changes to the regulation of the advertising industries in China. If our revenues
generated from our advertising and media business for a particular quarter are lower than we expect, we may be unable to reduce
our operating expenses for that quarter by a corresponding amount, which would harm our overall operating results for that quarter
relative to our operating results from other quarters.
The out-of-home
advertising market is intensely competitive. In addition, we might face competitive pressure from well-established internet companies,
marketing agencies and traditional media.
With
the introduction of new technologies and the influx of new entrants, we expect competition to continue and intensify, which could
harm our ability to increase revenue and attain or sustain profitability. We believe the principal competitive factors in this
industry include:
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ability
to deliver return on marketing expenditure at scale;
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breadth
and depth of cooperation with publishers, ad exchanges, ad networks and other participants in the online marketing ecosystem;
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comprehensiveness
of solutions and service offerings;
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pricing
structure and competitiveness;
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cross-channel
capabilities;
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accessibility
and user-friendliness of solutions; and
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In
addition, independent online marketing technology platforms face competitive pressure from large and well-established internet
companies which have established stronger and broader presence across the online marketing ecosystem and have significantly more
financial, technical, marketing and other resources, more extensive client base, and longer operating histories and greater brand
recognition than we do. These companies may also leverage their positions to make changes to their systems, platforms, exchanges,
networks or other products or services that could be harmful to our business and results of operations. In addition, these large
and well-established companies control content distribution channels and would directly compete with us should we vertically expand
our business to own or operate content distribution channels in the future. Further, some of these companies are, or may also become,
our content distribution channels and may enter into other types of strategic arrangements with us. We also face competition from
marketing agencies, who may have their own relationships with content distribution channels and can directly connect marketers
with such channels. Furthermore, we continue to compete with traditional media including direct marketing, television, radio, cable
and print advertising companies.
New
technologies and methods of online marketing present an evolving competitive challenge, as market participants upgrade or expand
their service offerings to capture more marketing spend from marketers. In addition to existing competitors and their existing
service offerings, we expect to face competition from new entrants to the online marketing technology industry and new service
offerings from existing competitors. If existing or new companies develop, market or resell competitive high-value marketing technology
solutions, acquire one of our competitors or strategic partners, form a strategic alliance or enter into exclusivity arrangement
with one of our competitors or strategic partners, our ability to compete effectively could be significantly compromised and our
business, results of operations and prospects could be materially and adversely affected.
If our
advertising business do not achieve widespread market acceptance, our business, growth prospects and results of operations would
be materially and adversely affected.
The
market for out-of-home advertising is evolving in China and may not achieve or sustain high levels of demand and market acceptance
as we expect because we may face competition from mobile and social media. While marketing via search engines or display channels
has been established for several years, marketing via new digital channels such as mobile and social media is not as well established
and under quick development. The future growth of our out-of-home advertising business could be constrained by our competitors
in out-of-home digital display business and competitors from emerging online marketing channels and social media.
Expansion
of our outdoor advertising business depends on a number of factors, including the growth of new digital advertising channels such
as mobile and social media and the cost, as well as the performance and perceived value associated with online marketing technology
solutions. If we do not achieve widespread acceptance, or there is a reduction in demand for out-of-home advertising caused by
weakening economic conditions, decreases in corporate spending, technological challenges, data security or privacy concerns, governmental
regulation, competing technologies and solutions or otherwise, our business, growth prospects and results of operations will be
materially and adversely affected.
If our operating
platforms are flawed or ineffective, or if our platform fails to otherwise function properly, our reputation and market share would
be materially and adversely affected.
Our
ability to attract marketers to, and build trust in, our platform is significantly dependent on our ability to interact with relevant
marketing content. The data we collect may not be relevant to all industries, and for certain industries, we may not have sufficient
user data to ensure that our platforms would work effectively. Furthermore, we generally do not verify the data we gather, which
may be subject to fraud or are otherwise inaccurate. Even if such data are accurate, they may become irrelevant or outdated and
thus may not reflect a user’s genuine interest or accurately predict his or her interaction with a given marketing message.
For example, following the date we obtain the relevant data, a user’s interest and behavior pattern may change or he or she
may have already completed a transaction and is no longer interested in the marketing message.
In
addition, we expect to experience significant growth in the amount of data we process as we continue to develop new solutions and
features to meet evolving and growing marketer demands. As the amount of data and variables we process increases, the calculations
that our algorithms and data engines must process become increasingly complex and the likelihood of any defect or error increases.
To the extent our operating platforms fail to accurately assess or predict a user’s interest in and interaction with, the
relevant marketing content, or experience significant errors or defects, marketers may not achieve their marketing goals in a cost-effective
manner or at all, which could make our platform less attractive to them, result in damages to our reputation and a decline of our
market share and adversely affect our business and results of operations.
We plan
to use big data platform to run and manage our out-of-home advertising digital displays. However, our ability to collect and use
data from various sources could be restricted, and therefore, it may affect our management and operation of our out-of-home advertising
digital displays.
We
plan to use big data platform to run and manage our out-of-home advertising digital displays. With data collected by and analysis
ran by big data platform, we may better identify the target audience of our out-of-home advertising digital displays. The optimal
performance and analysis of our big data platform depends on the data that we collect from multiple sources, which we use to build
user profiles, develop and refine preferences of our target audience. Our ability to collect and use these types of data is limited
by a number of factors including:
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decisions
by marketers, content distribution channels, or selected third party that we may have data collaboration arrangement with, to
restrict our ability to collect data from them, to refuse to implement mechanisms that we may request to ensure compliance with
our legal obligations;
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new
developments in law, regulations and industry standards on privacy and data protection regimes, including increased visibility
of consent mechanisms as a result of these legal, regulatory or industry developments;
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the
failure of our network or software systems, or the network or software systems of marketers;
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our
inability to grow client base in new industries and geographic markets in order to obtain the critical mass of data necessary
for our algorithms and data engines to perform optimally in these new industries and geographies;
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our
relationship with our data partners or certain key data sources, including major internet companies in China, which may stop providing
or be unable to provide us data on terms acceptable to us; and
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interruptions,
failures or defects in our data collection, mining, analysis and storage systems.
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Any
of the above described limitations on our ability to successfully collect and use data could materially impair the optimal performance
of our big data platform as well as the efficiency of our solutions for our clients, which could make our platform less attractive
to marketers and result in damages to our reputation, a decline of our market share and adversely affect our business and results
of operations.
Our failure
to maintain existing relationships or obtain new relationships with businesses that allow us to access to desirable locations and
platforms on which we operate our network could harm or reverse our growth potential and our ability to increase our revenues.
Our
ability to generate revenues from advertising sales depends largely upon our ability to provide large networks of flat-panel displays
placed in desirable building, commercial and store locations, of advertising poster frames placed in residential complexes, to
secure desirable locations of large outdoor LED digital billboards, throughout major urban areas in China. We also depend on the
ability of our third-party location provider to secure desirable LED digital billboard locations for our outdoor LED network. This,
in turn, requires that we develop and maintain business relationships with real estate developers, landlords, property managers,
hypermarkets, retailers and other businesses and locations in which we rent space for our displays and digital billboards. Although
our advertising space leasing agreements have terms of 19 years, we may not be able to maintain our relationships with them on
satisfactory terms, or at all. If we fail to maintain our relationships with landlords and property managers, or if our leasing
agreement is terminated or not renewed or if we fail to maintain our relationship with our location provider of LED billboard space,
advertisers may find advertising on our networks unattractive and may not wish to purchase advertising time slots or advertising
frame space on our networks, which would cause our revenues to decline and our business and prospects to deteriorate.
In
accordance with PRC real estate laws and regulations, prior consent of landlords and property managers is required for any commercial
use of the public areas or facilities of residential properties. With regard to our network of advertising poster frames and some
of our LED screen placed in the elevators and public areas of residential complexes, we have entered/plan to enter into frame or
display placement agreements with property managers and landlords. For those frame or display placement agreements entered into
with property managers, we intend to obtain or urge property managers to obtain consents from landlords. However, if the landlords
of a residential complex object to our placing advertising displays in the elevators and public areas of the complex, we may be
required to remove our advertising displays from the complex and may be subject to fines. We may not be able to successfully expand
our out-of-home advertising network into new regions or diversify our network into new advertising networks or media platforms,
which could harm or reverse our growth potential and our ability to increase our revenues.
If we are
unable to obtain or retain desirable placement locations for our outdoor digital displays on commercially advantageous terms or
if the supply of desirable locations diminishes or ceases to expand, we could have difficulty in maintaining or expanding our network,
our operating margins and earnings could decrease and our results of operations could be materially and adversely affected.
Our
location costs, which include lease payments to landlords and property managers under our advertising space leasing agreement,
maintenance and monitoring fees and other associated costs, could comprise a significant portion of our cost of revenues. We may
also need to increase our expenditures on our advertising space leasing agreements to obtain new and desirable locations, to renew
existing locations, and to secure favorable exclusivity and renewal terms. In addition, lessors of space for our outdoor digital
displays may charge increasingly higher display location lease fees, or demand other compensation arrangements, such as profit
sharing. If we are unable to pass increased location costs on to our advertising clients through rate increases, our operating
margins and earnings could decrease and our results of operations could be materially and adversely affected.
In
addition, in some developed cities of the Greater Bay Area of China, it may be difficult to increase the number of desirable locations
in our network because most such locations have already been occupied either by us or by our competitors, or in the case of outdoor
LED billboards, the placement of outdoor installments may be limited by municipal zoning and planning policies. In recently developing
cities, the supply of desirable locations may be small and the pace of economic development and construction levels may not provide
a steadily increasing supply of desirable commercial and residential locations. If, as a result of these possibilities, we are
unable to increase the placement of our out-of-home digital displays into commercial and residential locations that advertisers
find desirable, we may be unable to expand our client base, sell advertising time slots and poster frame space on our network or
increase the rates we charge for time slots and poster frame space, which could decrease the value of our network to advertisers.
If we are
unable to attract advertisers to advertise on our networks, we will be unable to maintain or increase our advertising fees and
the demand for time on our networks, which could negatively affect our ability to grow revenues.
The
amounts of fees we can charge advertisers for time slots on our out-of-home digital display advertising and media technology networks
depend on the size and quality of our out-of-home digital display advertising and media technology networks and the demand by advertisers
for advertising time on our out-of-home digital display advertising and media technology networks. Advertisers choose to advertise
on our out-of-home digital display advertising and media technology networks in part based on the size of the networks and the
desirability of the locations where we have placed our flat-panel displays and where we lease LED digital billboards as well as
the quality of the services we offer. If we fail to maintain or increase the number of locations, displays and billboards in our
networks, diversify advertising channels in our networks, or solidify our brand name and reputation as a quality provider of advertising
services, advertisers may be unwilling to purchase time on our networks or to pay the levels of advertising fees we require to
remain profitable.
In
addition, the fees we can charge advertisers for frame space on our poster frame network depends on the quality of the locations
in which we place advertising poster frames, demand by advertisers for frame space and the quality of our service. If we are unable
to continue to secure the most desirable residential locations for deployment of our advertising poster frames, we may be unable
to attract advertisers to purchase frame space on our poster frame network.
Our
failure to attract advertisers to purchase time slots and frame space on our networks will reduce demand for time slots and frame
space on our networks and the number of time slots and amount of frame space we are able to sell, which could necessitate lowering
the fees we charge for advertising time on our network and could negatively affect our ability to increase revenues in the future.
Failure
to manage our growth could strain our management, operational and other resources and we may not be able to achieve anticipated
levels of growth in the new networks and media platforms we are beginning to operate, either of which could materially and adversely
affect our business and growth potential.
We
have been rapidly expanding, and plan to continue to rapidly expand, our advertising and media operations in China. We must continue
to expand our advertising and media operations to meet the potential demands of advertisers for larger and more diverse network
coverage and the demands of current and future landlords and property managers for installing and configuring outdoor digital displays
in our existing and future commercial, store, residential and urban locations. This expansion has resulted, and will continue to
result, in substantial demands on our management resources. To manage our growth, we must develop and improve our existing administrative
and operational systems and, our financial and management controls and further expand, train and manage our work force. As we continue
this effort, we may incur substantial costs and expend substantial resources in connection with any such expansion due to, among
other things, different technology standards, and legal considerations. We may not be able to manage our operations effectively
and efficiently or compete effectively in such markets. We cannot assure you that we will be able to efficiently or effectively
manage the growth of our operations, recruit top talent and train our personnel. Any failure to efficiently manage our expansion
may materially and adversely affect our business and future growth.
We
may expand into new networks and new media platforms, however, the new advertising networks and media platforms we pursue in the
future may not present the same opportunities for growth of outdoor digital displays as expected. Accordingly, we cannot assure
you that the level of growth of our networks will not decline over time. Moreover, we expect the level of growth of our commercial
location network to decrease as many of the more desirable locations have already been leased by us or our competitors.
If advertisers
or the viewing public do not accept, or lose interest in, our out-of-home advertising network, our revenues may be negatively affected
and our business may not expand or be successful.
We
compete for advertising spending with many forms of more established advertising media. Our success depends on the acceptance of
our out-of-home advertising network by advertisers and their continuing interest in these mediums as components of their advertising
strategies. Our success also depends on the viewing public continuing to be receptive towards our advertising network. Advertisers
may elect not to use our services if they believe that consumers are not receptive to our networks or that our networks do not
provide sufficient value as effective advertising mediums. Likewise, if consumers find some element of our networks, such as the
strong light from the billboard, to be disruptive or intrusive, advertisers may decide not to place advertisements on our advertising
network and may deem our outdoor billboards as a less attractive advertising medium compared to other alternatives. In that event,
advertisers may determine to reduce their spending on our advertising network. If a substantial number of advertisers lose interest
in advertising on our advertising network for these or other reasons, we will be unable to generate sufficient revenues and cash
flow to operate our business, and our advertising service revenue, liquidity and results of operations could be negatively affected.
We may need
additional capital and we may not be able to obtain it, which could adversely affect our liquidity and financial position.
We
believe that our current cash and cash equivalents and cash flow from operations will be sufficient to meet our anticipated cash
needs including for working capital and capital expenditures, for the foreseeable future. We may, however, require additional cash
resources due to changed business conditions or other future developments. If these sources are insufficient to satisfy our cash
requirements, we may seek to sell additional equity or debt securities or obtain a credit facility. The sale of convertible debt
securities or additional equity securities, could result in additional dilution to our shareholders. The incurrence of indebtedness
would result in increased debt service obligations and could result in operating and financing covenants that would restrict our
operations and liquidity.
Our ability to
obtain additional capital on acceptable terms is subject to a variety of uncertainties, including:
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investors’
perception of, and demand for, securities of alternative advertising media companies;
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conditions
of the U.S. and other capital markets in which we may seek to raise funds;
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our
future results of operations, financial condition and cash flows;
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PRC
governmental regulation of foreign investment in advertising services companies in China;
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economic,
political and other conditions in China; and
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PRC
governmental policies relating to foreign currency borrowings.
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We
cannot assure you that financing will be available in amounts or on terms acceptable to us, if at all. Any failure by us to raise
additional funds on terms favorable to us could have a material adverse effect on our liquidity and financial condition.
If we are
unable to adapt to changing advertising trends and the technology needs of advertisers and consumers, we will not be able to compete
effectively and we will be unable to increase or maintain our revenues which may materially and adversely affect our business prospects
and revenues.
The
market for out-of-home advertising requires us to continuously identify new advertising trends and the technology needs of advertisers
and consumers, which may require us to develop new features and enhancements for our advertising network. In the future, subject
to relevant PRC laws and regulations, we may use other technology, such as cable or broadband networking, advanced audio technologies
and high-definition panel technology. We may be required to incur development and acquisition costs in order to keep pace with
new technology needs but we may not have the financial resources necessary to fund and implement future technological innovations
or to replace obsolete technology. Furthermore, we may fail to respond to these changing technology needs. For example, if the
use of wireless or broadband networking capabilities on our advertising network becomes a commercially viable alternative and meets
all applicable PRC legal and regulatory requirements, and we fail to implement such changes on our commercial location network
and in-store network or fail to do so in a timely manner, our competitors or future entrants into the market who do take advantage
of such initiatives could gain a competitive advantage over us. If we cannot succeed in developing and introducing new features
on a timely and cost-effective basis, advertiser demand for our advertising networks may decrease and we may not be able to compete
effectively or attract advertising clients, which would have a material and adverse effect on our business prospects and revenues.
We may be
subject to intellectual property infringement claims, which may force us to incur substantial legal expenses and, if determined
adversely against us, may materially disrupt our business.
We
cannot be certain that our advertising displays or other aspects of our business do not or will not infringe upon patents, copyrights
or other intellectual property rights held by third parties. Although we are not aware of any such claims, we may become subject
to legal proceedings and claims from time to time relating to the intellectual property of others in the ordinary course of our
business. If we are found to have violated the intellectual property rights of others, we may be enjoined from using such intellectual
property, and we may incur licensing fees or be forced to develop alternatives. In addition, we may incur substantial expenses
in defending against these third party infringement claims, regardless of their merit. Successful infringement or licensing claims
against us may result in substantial monetary liabilities, which may materially and adversely disrupt our business.
We face
significant competition, and if we do not compete successfully against new and existing competitors, we may lose our market share,
and our profitability may be adversely affected.
We
compete with other advertising companies in China. We compete for advertising clients primarily on the basis of network size and
coverage, location, price, the range of services that we offer and our brand name. We also face competition from other out-of-home
television advertising network operators for access to the most desirable locations in cities in China. Individual buildings, hotels,
restaurants and other commercial locations and hypermarket, supermarket and convenience store chains may also decide to independently,
or through third-party technology providers, install and operate their own flat-panel television advertising screens.
Our
out-of-home advertising network faces competition with similar networks operated by domestic out-of-home advertising companies,
including but not limited to Shanghai Xicheng Cultural Dissemination Co., Ltd., Focus Media Information Technology, and iClick
Interactive Asia Group Limited. We also compete for overall advertising spending with other alternative advertising media companies,
such as Internet, wireless communications, street furniture, billboard, frame and public transport advertising companies, and with
traditional advertising media, such as newspapers, television, magazines and radio.
In
the future, we may also face competition from new entrants into the out-of-home television advertising sector. Our sector is characterized
by relatively low fixed costs and, as is customary in the advertising industry. In addition, since December 10, 2005, wholly foreign-owned
advertising companies are allowed to operate in China, which may expose us to increased competition from international advertising
media companies attracted to opportunities in China.
Increased
competition could reduce our operating margins and profitability and result in a loss of market share. Some of our existing and
potential competitors may have competitive advantages, such as significantly greater financial, marketing or other resources, or
exclusive arrangements with desirable locations, and others may successfully mimic and adopt our business model. Moreover, increased
competition will provide advertisers with a wider range of media and advertising service alternatives, which could lead to lower
prices and decreased revenues, gross margins and profits. We cannot assure you that we will be able to successfully compete against
new or existing competitors.
We do not
maintain any business liability disruption or litigation insurance coverage for our operations, and any business liability, disruption
or litigation we experience might result in our incurring substantial costs and the diversion of resources.
While
business disruption insurance is available to a limited extent in China, we have determined that the risks of disruption, cost
of such insurance and the difficulties associated with acquiring such insurance on commercially reasonable terms make it impractical
for us to have such insurance. As a result, we do not have any business liability, disruption or litigation insurance coverage
for our operations of advertising and media business in China. Any business disruption or litigation may result in our incurring
substantial costs and the diversion of resources.
Any negative
publicity with respect to us in general or our partners may materially and adversely affect our reputation, business and results
of operations.
Complaints,
litigation, regulatory actions or other negative publicity that arise about the advertising industry in general or our company
in particular, including on the quality, effectiveness and reliability of privacy and security practices, and advertising content,
even if inaccurate, could adversely affect our reputation and client confidence in, and the use of, our solutions. Harm to our
reputation and client confidence can also arise for many other reasons, including employee misconduct, misconduct of our data and
content distribution channel partners, data center providers or other counterparties, failure by these persons or entities to meet
minimum quality standards or otherwise fulfill their contractual obligations or to comply with applicable laws and regulations.
Additionally, negative publicity with respect to our data or content distribution channel partners could also affect our business
and results of operation to the extent that we rely on these partners or if marketers or marketing agencies associate our company
with such partners.
If we fail
to promote or maintain our brand in a cost-efficient manner, our business and results of operations may be harmed.
We
believe that developing and maintaining awareness of our brand in a cost-effective manner is critical to achieving widespread acceptance
of our platforms, and is an important element in attracting new clients and partners. Furthermore, we believe that the importance
of brand recognition will increase as competition in our market increases. Successful promotion of our brand will depend largely
on our ability to deliver value propositions to marketers and on the effectiveness of our marketing efforts If we fail to successfully
promote and maintain our brand, or incur substantial expenses in an unsuccessful attempt to promote and maintain our brand, we
may fail to attract enough new clients or retain our existing clients and our business and results of operations can be materially
and adversely affected.
Risks Relating
to Regulations of Our Adverting and Media Business
Our business
operations may be affected by legislative or regulatory changes.
There
are no existing PRC laws, rules or regulations that specifically define or regulate advertising on billboards. Moreover, we cannot
assure you that any new laws, rules or regulations governing advertising on billboards, or out-of-home advertising generally, would
not be burdensome to us or otherwise increase compliance and other costs or have a material adverse effect on our business and
operations. We also cannot predict the timing and effects of any such new laws, rules or regulations. Changes in laws, rules and
regulations governing advertising services, our business licenses or any other aspects of our business and operations may result
in substantial additional costs as well as diversion of resources, and could have a material adverse effect on our financial condition,
results of operations and prospects.
Adverse
changes in the political and economic policies of the PRC government could significantly decrease the overall economic growth of
the PRC, which could lead to a reduction in demand for our services and materially and adversely affect our business, financial
conditions, results of operations and prospects.
Substantially
all of our assets are located in the PRC and substantially all of our revenues are derived from our operations in the PRC. Accordingly,
our business, financial condition, results of operations and prospects are affected significantly by economic, political and legal
developments in China. The PRC economy differs from the economies of most developed countries in many respects, including:
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the level of government
involvement;
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the level of development;
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|
the control of foreign
exchange; and
|
|
|
●
|
the allocation of resources.
|
While
the PRC economy has experienced significant growth, growth has been uneven both geographically and among various sectors of the
economy. The PRC government has implemented various measures to encourage economic growth and guide the allocation of resources.
Some of these measures may benefit the overall PRC economy, but may also have a negative effect on us. For example, our financial
condition and results of operations may be materially and adversely effected by government control over capital investments or
changes in tax regulations that are applicable to us. We cannot predict the future direction of political or economic reforms or
the effects such measures may have on our business, financial position or results of operations. Any adverse change in the political
or economic conditions in the PRC, including changes in the policies of the PRC government or in laws and regulations in the PRC,
could have a material adverse effect on the overall economic growth of the PRC and in out-of-home advertising as
well as the overall advertising industry. Such developments could lead to a reduction in demand for our services and materially
and adversely affect our business, financial condition, results of operations and prospects.
We are subject
to, and may expend significant resources in defending against, government actions and civil claims in connection with false, fraudulent,
misleading or otherwise illegal marketing content for which we provide design, production or agency services.
Under
PRC Advertising Law, where an advertising operator provides advertising design, production or agency services with respect to an
advertisement when it knows or should have known that the advertisement is false, fraudulent, misleading or otherwise illegal,
the competent PRC authority may confiscate the advertising operator’s advertising revenue from such services, impose penalties,
order it to cease dissemination of such false, fraudulent, misleading or otherwise illegal advertisement or correct such advertisement,
or suspend or revoke its business licenses under certain serious circumstances.
Under
the PRC Advertising Law, “advertising operators” include any natural person, legal person or other organization that
provides advertising design, production or agency services to advertisers for their advertising activities. Since our solutions
involve provision of agency services to marketers, including helping them identify, engage and convert audience, and create content
catering to their potential clients across different content distribution channels, we are deemed as an “advertising operator”
under the PRC Advertising Law. Therefore, we are required to examine advertising content for which we provide agency services for
compliance with applicable laws, notwithstanding the fact that the advertising content may have been previously published, and
that the advertisers also bear liabilities for the content in their advertisements. In addition, for advertising content related
to certain types of products and services, such as alcohol, cosmetics, pharmaceuticals and medical procedures, we are expected
to confirm that the advertisers have obtained requisite government approvals, including operating qualifications, proof of quality
inspection for the advertised products, government pre-approval of the content of the advertisements and filings with
the local authorities. Although we have established internal policies to review and vet advertising content before it is placed
on a content distribution channel to ensure compliance with applicable laws, we cannot ensure that each advertisement for which
we provide agency services complies with all PRC laws and regulations relevant to advertising activities, that supporting documentation
provided by our clients is authentic or complete, or that we are able to identify and rectify all non-compliances in
a timely manner.
Moreover,
civil claims may be filed against us for fraud, defamation, subversion, negligence, copyright or trademark infringement or other
violations due to the nature and content of the information for which we provide design,
production or agency services. For example, we generally represent and warrant in our contracts with content distribution channels
as to the truthfulness of the advertising content that we place on these channels, and agree to indemnify the content distribution
channels for any losses resulting from false, fraudulent, misleading or otherwise illegal advertising content that we place on
these content distribution channels. On the other hand, not all our marketing campaign contracts contain a back-to-back representation
and warranty as to the truthfulness of the advertising content or an indemnity provision where the clients undertake to hold us
harmless in case we incur losses arising out of any false, fraudulent, misleading or otherwise illegal advertising content. In
the event we are subject to government actions or civil claims in connection with false, fraudulent, misleading or otherwise illegal
marketing content for which we provide agency services, our reputation, business and results of operations may be materially and
adversely affected.
SELLING SHAREHOLDERS
The table below lists
the Selling Shareholders and other information regarding the “beneficial ownership” of the Ordinary Shares by the Selling
Shareholders. In accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
“beneficial ownership” includes any Ordinary Shares as to which the Selling Shareholders have sole or shared voting
power or investment power and any Ordinary Shares that the Selling Shareholders hold.
The second column indicates
the number of Ordinary Shares beneficially owned by the Selling Shareholders, based on their respective ownership as of February
22, 2021.
The third column lists
the Ordinary Shares being offered by this prospectus by the Selling Shareholders.
This prospectus covers
the resale of all of the Ordinary Shares that are held by the Selling Shareholders. The Selling Shareholders can offer all, some
or none of their Ordinary Shares, thus we have no way of determining the number of the Ordinary Shares that will be held after
this offering. Therefore, the fourth and fifth columns assume that the Selling Shareholders will sell all of the Ordinary Shares
which are covered by this prospectus. See “Plan of Distribution.”
|
|
|
Number
of
Ordinary Shares
Owned Prior to
Offering (1)
|
|
|
Maximum
Number of
Ordinary Shares to
be Sold Pursuant to
this Prospectus
|
|
|
Number
of
Ordinary
Shares Owned
After Offering (1)
|
|
|
Percentage
Beneficially
Owned
After
Offering (1)
|
|
|
Dafan Chen (2)
|
|
|
1,400,000
|
|
|
|
1,400,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Xing Li (3)
|
|
|
1,400,000
|
|
|
|
1,400,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Yunxian Wu (4)
|
|
|
400,000
|
|
|
|
400,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Wenge Chen (5)
|
|
|
300,000
|
|
|
|
300,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Yimin Ding (6)
|
|
|
300,000
|
|
|
|
300,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Shuai Jiang (7)
|
|
|
1,000,000
|
|
|
|
1,000,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Xiaohui Wang (8)
|
|
|
200,000
|
|
|
|
200,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
ChiKeung Yan (9)
|
|
|
200,000
|
|
|
|
200,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Hua Liu (10)
|
|
|
1,000,000
|
|
|
|
1,000,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Wei Wen (11)
|
|
|
1,000,000
|
|
|
|
1,000,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
Hongbin
Li (12)
|
|
|
1,600,000
|
|
|
|
1,600,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
TOTAL
|
|
|
8,800,000
|
|
|
|
8,800,000
|
|
|
|
0
|
|
|
|
*
|
%
|
|
|
(1)
|
Includes Ordinary Shares
owned by the Selling Shareholders.
|
|
|
(2)
|
The address of the selling
shareholder is 481 Factory, Nanding Town, Zhangdian District, Zibo City, Shandon Province, China.
|
|
|
(3)
|
The address of the selling
shareholder is Building 4, Zijin Manor, Haidian District, Beijing, China.
|
|
|
(4)
|
The address of the selling shareholder is Room 1701, Building
9, Phoenix City, Country Garden, Heyuan, Guangdong, China.
|
|
|
(5)
|
The address of the selling shareholder is Room 2503, Building
3, Zhonghai Mingzuan Building, No.688, Haoj Road, Xiangzhou District, Zhuhai City, Guangdong Province, China.
|
|
|
(6)
|
The address of the selling shareholder is Room 306, Building
46, Oriental Lily Garden, 308 Yangzijiang North Road, Yangzhou city, Jiangsu Province, China.
|
|
|
(7)
|
The address of the selling shareholder is 1-3 Unit, Building
3, Yuexin Aiqin Yu, 2 Kangxing Road, Huixing Street, Yub District, Chongqing, China.
|
|
|
(8)
|
The address of the selling shareholder is 2-2 Unit, Building
1, No. 55, Huafu Lane, Yuzhong District, Chongqing, China.
|
|
|
(9)
|
The address of the selling shareholder is House 81, Seasons
Villas, 233 Kam Tin Rd, Kam Tin, NT.
|
|
|
(10)
|
The address of the selling shareholder is 24 Unit ,Group
7, Lanhujun, Jinkai Avenue, Yubei District, Chongqing, China.
|
|
|
(11)
|
The address of the selling shareholder is 24-3, Unit 2,
Building 3, Block 10, Luneng Xingcheng, Yubei District, Chongqing, China.
|
|
|
(12)
|
The address of the selling shareholder is 18b01-1, Anlian
building, Futian District, Shenzhen, China.
|
Material Relationships with Selling
Shareholders
We have had the following
material relationships with the Selling Shareholders in the last three (3) years:
On August 24, 2020,
the Company entered into certain securities purchase agreements (the “SPAs”) with the Selling Shareholders,
pursuant to which the Company sold an aggregate of 8,800,000 ordinary shares, par value $$0.00166667, at a per share purchase price
of $2.00 per share. The net proceeds to the Company from this offering was approximately $17.5 million.
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.
USE OF PROCEEDS
Except as otherwise
provided in the applicable prospectus supplement relating to a specific offering, we intend to use the net proceeds from the sale
of securities by us under this prospectus for working capital and other general corporate purposes. Additional information on the
use of net proceeds from the sale of securities by us under this prospectus may be set forth in the prospectus supplement relating
to the specific offering.
We will not receive
any of the proceeds from the sale of any securities offered pursuant to this prospectus by any Selling Shareholder. The Selling
Shareholders will receive all of the proceeds from the sale of Ordinary Shares under the secondary offering of this prospectus.
The Selling Shareholders will pay any agent’s commissions and expenses they incur for brokerage, accounting, tax or legal
services or any other expenses that they incur in disposing of the Ordinary Shares. We will bear all other costs, fees and expenses
incurred in effecting the registration of the Ordinary Shares covered by this prospectus and any prospectus supplement. These may
include, without limitation, all registration and filing fees, SEC filing fees and expenses of compliance with Cayman Islands laws.
See “Plan of
Distribution” elsewhere in this prospectus for more information.
PLAN OF DISTRIBUTION
We may sell the securities
offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers, including our affiliates,
(iii) through agents, or (iv) through a combination of any these methods. The securities may be distributed at a fixed price or
prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or
negotiated prices. The prospectus supplement will include the following information:
|
|
●
|
the
terms of the offering;
|
|
|
●
|
the
names of any underwriters or agents;
|
|
|
●
|
the
name or names of any managing underwriter or underwriters;
|
|
|
●
|
the
purchase price of the securities;
|
|
|
●
|
any
over-allotment options under which underwriters may purchase additional securities from us;
|
|
|
●
|
the
net proceeds from the sale of the securities;
|
|
|
●
|
any
delayed delivery arrangements;
|
|
|
●
|
any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
|
|
|
●
|
any
initial public offering price;
|
|
|
●
|
any
discounts or concessions allowed or reallowed or paid to dealers;
|
|
|
●
|
any
commissions paid to agents; and
|
|
|
●
|
any
securities exchange or market on which the securities may be listed.
|
Sale through Underwriters or Dealers
Only underwriters named
in the prospectus supplement are underwriters of the securities offered by the prospectus supplement. If underwriters are used
in the sale, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security
lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions,
including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other
securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters
may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly
by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may change from time to time any public offering price and any discounts
or concessions allowed or reallowed or paid to dealers.
If dealers are used
in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may then resell
those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will
include the names of the dealers and the terms of the transaction.
We will provide in
the applicable prospectus supplement any compensation we will pay to underwriters, dealers or agents in connection with the offering
of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers.
Direct Sales and Sales through Agents
We may sell the securities
offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may also be
sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or sale of
the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities
directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with
respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
Delayed Delivery Contracts
If the prospectus supplement
indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities
at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commission payable for solicitation of those contracts.
Market Making, Stabilization and Other Transactions
Unless the applicable
prospectus supplement states otherwise, other than our Ordinary Share all securities we offer under this prospectus will be a new
issue and will have no established trading market. We may elect to list offered securities on an exchange or in the over-the-counter
market. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may discontinue
such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid trading market.
Any underwriter may
also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104 under the
Securities Exchange Act. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose
of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities
in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit
the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member
are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions.
The underwriters may, if they commence these transactions, discontinue them at any time.
Selling Shareholders’ Plan of Distribution
The Selling Shareholders
and any of their respective pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities
covered hereby on any trading market, share exchange or other trading facility on which the securities are traded or in private
transactions. These sales may be at fixed or negotiated prices. The Selling Shareholders may use any one or more of the following
methods when selling securities:
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
●
|
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
|
|
|
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
●
|
an
exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
●
|
privately
negotiated transactions;
|
|
|
●
|
settlement
of short sales;
|
|
|
●
|
in
transactions through broker-dealers that agree with the Selling Shareholders to sell a specified number of such securities at
a stipulated price per security;
|
|
|
●
|
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
●
|
a
combination of any such methods of sale; or
|
|
|
●
|
any other method permitted
pursuant to applicable law.
|
The Selling Shareholders
may also sell securities under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged
by the Selling Shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction
not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction
a markup or markdown in compliance with FINRA IM-2440.
In connection with
the sale of the securities covered hereby, the Selling Shareholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions
they assume. The Selling Shareholders may also sell securities short and deliver these securities to close out their short positions,
or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Shareholders may also enter
into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities
which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which
securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction).
The Selling Shareholders
and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. We are requesting that each Selling Shareholder inform us that it does not have any written or oral agreement
or understanding, directly or indirectly, with any person to distribute the securities. We will pay certain fees and expenses incurred
by us incident to the registration of the securities.
Because the Selling
Shareholders may be deemed to be an “underwriter” within the meaning of the Securities Act, they will be subject to
the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. In addition, any securities covered
by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than
under this prospectus. We are requesting that each Selling Shareholder confirm that there is no underwriter or coordinating broker
acting in connection with the proposed sale of the resale securities by the Selling Shareholder.
We intend to keep this
prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Shareholders without
registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
us to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule
of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers
if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Under applicable rules
and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Ordinary Share for the applicable restricted period, as defined in Regulation
M, prior to the commencement of the distribution. In addition, the Selling Shareholders will be subject to applicable provisions
of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and
sales of the Ordinary Share by the Selling Shareholders or any other person. We will make copies of this prospectus available to
the Selling Shareholders and are informing the Selling Shareholders of the need to deliver a copy of this prospectus to each purchaser
at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
DESCRIPTION OF CAPITAL SHARE
General
We are a Cayman Islands
exempt company and our affairs are governed by our Fourth Amended and Restated Memorandum and Articles of Association and Companies
Law of the Cayman Islands, which we refer to as the Companies Law below. As of the date hereof, our authorized share capital is
US$500,000 divided into 30,000,000 ordinary shares with a par value of US$0.00166667 per share.
As of February 22,
2021, there are 45,777,318 Ordinary Shares issued and outstanding. The following are summaries of material provisions of our Fourth
Amended and Restated Memorandum and Articles of Association and the Companies Law insofar as they relate to the material terms
of our Ordinary Shares.
Ordinary Shares
A description of our
ordinary shares can be found in our Registration Statement on Form F-1, as amended, under the Securities Act of 1933, as amended
(the “Securities Act”), as originally filed with the SEC on January 4, 2019 (Registration No. 333-229128) under the
heading “Description of Securities” and as incorporated into the Company’s Form 8-A, filed with the SEC on March,
27, 2019 which description is incorporated by reference herein. See “Incorporation of Certain Information by Reference.”
Preferred Shares
Our Memorandum and
Articles of Association, as amended, authorizes our Board of Directors to establish one or more series of preferred shares with
such designation, number of shares of the series, rights and preferences as may be determined from time to time by its Board of
Directors. Accordingly, our Board of Directors is empowered, without action by its shareholders, to issue preferred shares to the
extent of available authorized but unissued shares. The preferred shares could be utilized as an anti-takeover device without further
action on the part of the shareholders. Issuance of these shares may dilute the voting power of holders of ordinary shares.
As of the date of this
prospectus, there are no outstanding preferred shares of any series.
The material terms
of any series of preferred shares that we offer, together with any material Cayman Islands. or United States federal income tax
considerations relating to such preferred shares, will be described in a prospectus supplement.
Debt Securities
As used in this prospectus,
the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness that we may issue
from time to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated debt securities.
We may also issue convertible debt securities. Debt securities issued under an indenture (which we refer to herein as an Indenture)
will be entered into between us and a trustee to be named therein. It is likely that convertible debt securities will not be issued
under an Indenture.
The Indenture or forms
of Indentures, if any, will be filed as exhibits to the registration statement of which this prospectus is a part. The statements
and descriptions in this prospectus or in any prospectus supplement regarding provisions of the Indentures and debt securities
are summaries thereof, do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all
of the provisions of the Indentures (and any amendments or supplements we may enter into from time to time which are permitted
under each Indenture) and the debt securities, including the definitions therein of certain terms.
General
Unless otherwise specified
in a prospectus supplement, the debt securities will be direct secured or unsecured obligations of our company. The senior debt
securities will rank equally with any of our other unsecured senior and unsubordinated debt. The subordinated debt securities will
be subordinate and junior in right of payment to any senior indebtedness.
We may issue debt securities
from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. Unless indicated
in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of
the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with
all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable Indenture
and will be equal in ranking.
Should an indenture
relate to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution of assets to
satisfy our outstanding indebtedness or an event of default under a loan agreement relating to secured indebtedness of our company
or its subsidiaries, the holders of such secured indebtedness, if any, would be entitled to receive payment of principal and interest
prior to payments on the senior indebtedness issued under an Indenture.
Prospectus Supplement
Each prospectus supplement
will describe the terms relating to the specific series of debt securities being offered. These terms will include some or all
of the following:
|
|
●
|
the
title of debt securities and whether they are subordinated, senior subordinated or senior debt securities;
|
|
|
●
|
any
limit on the aggregate principal amount of debt securities of such series;
|
|
|
●
|
the
percentage of the principal amount at which the debt securities of any series will be issued;
|
|
|
●
|
the
ability to issue additional debt securities of the same series;
|
|
|
●
|
the
purchase price for the debt securities and the denominations of the debt securities;
|
|
|
●
|
the
specific designation of the series of debt securities being offered;
|
|
|
●
|
the
maturity date or dates of the debt securities and the date or dates upon which the debt securities are payable and the rate or
rates at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method by
which such rate shall be determined;
|
|
|
●
|
the
basis for calculating interest if other than 360-day year or twelve 30-day months;
|
|
|
●
|
the
date or dates from which any interest will accrue or the method by which such date or dates will be determined;
|
|
|
●
|
the
duration of any deferral period, including the maximum consecutive period during which interest payment periods may be extended;
|
|
|
●
|
whether
the amount of payments of principal of (and premium, if any) or interest on the debt securities may be determined with reference
to any index, formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the manner
of determining the amount of such payments;
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the
dates on which we will pay interest on the debt securities and the regular record date for determining who is entitled to the
interest payable on any interest payment date;
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the
place or places where the principal of (and premium, if any) and interest on the debt securities will be payable, where any securities
may be surrendered for registration of transfer, exchange or conversion, as applicable, and notices and demands may be delivered
to or upon us pursuant to the applicable Indenture;
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the
rate or rates of amortization of the debt securities;
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if
we possess the option to do so, the periods within which and the prices at which we may redeem the debt securities, in whole or
in part, pursuant to optional redemption provisions, and the other terms and conditions of any such provisions;
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our
obligation or discretion, if any, to redeem, repay or purchase debt securities by making periodic payments to a sinking fund or
through an analogous provision or at the option of holders of the debt securities, and the period or periods within which and
the price or prices at which we will redeem, repay or purchase the debt securities, in whole or in part, pursuant to such obligation,
and the other terms and conditions of such obligation;
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the
terms and conditions, if any, regarding the option or mandatory conversion or exchange of debt securities;
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the
period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the
series may be redeemed, in whole or in part at our option and, if other than by a board resolution, the manner in which any election
by us to redeem the debt securities shall be evidenced;
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any
restriction or condition on the transferability of the debt securities of a particular series;
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the
portion, or methods of determining the portion, of the principal amount of the debt securities which we must pay upon the acceleration
of the maturity of the debt securities in connection with any event of default if other than the full principal amount;
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the
currency or currencies in which the debt securities will be denominated and in which principal, any premium and any interest will
or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities
will be denominated;
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provisions,
if any, granting special rights to holders of the debt securities upon the occurrence of specified events;
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any
deletions from, modifications of or additions to the events of default or our covenants with respect to the applicable series
of debt securities, and whether or not such events of default or covenants are consistent with those contained in the applicable
Indenture;
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any
limitation on our ability to incur debt, redeem share, sell our assets or other restrictions;
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the
application, if any, of the terms of the applicable Indenture relating to defeasance and covenant defeasance (which terms are
described below) to the debt securities;
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what
subordination provisions will apply to the debt securities;
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the
terms, if any, upon which the holders may convert or exchange the debt securities into or for our Ordinary Share, preferred share
or other securities or property;
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whether
we are issuing the debt securities in whole or in part in global form;
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any
change in the right of the trustee or the requisite holders of debt securities to declare the principal amount thereof due and
payable because of an event of default;
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the
depositary for global or certificated debt securities, if any;
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any
material federal income tax consequences applicable to the debt securities, including any debt securities denominated and made
payable, as described in the prospectus supplements, in foreign currencies, or units based on or related to foreign currencies;
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any
right we may have to satisfy, discharge and defease our obligations under the debt securities, or terminate or eliminate restrictive
covenants or events of default in the Indentures, by depositing money or U.S. government obligations with the trustee of the Indentures;
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the
names of any trustees, depositories, authenticating or paying agents, transfer agents or registrars or other agents with respect
to the debt securities;
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to
whom any interest on any debt security shall be payable, if other than the person in whose name the security is registered, on
the record date for such interest, the extent to which, or the manner in which, any interest payable on a temporary global debt
security will be paid if other than in the manner provided in the applicable Indenture;
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if
the principal of or any premium or interest on any debt securities is to be payable in one or more currencies or currency units
other than as stated, the currency, currencies or currency units in which it shall be paid and the periods within and terms and
conditions upon which such election is to be made and the amounts payable (or the manner in which such amount shall be determined);
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the
portion of the principal amount of any debt securities which shall be payable upon declaration of acceleration of the maturity
of the debt securities pursuant to the applicable Indenture if other than the entire principal amount;
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if
the principal amount payable at the stated maturity of any debt security of the series will not be determinable as of any one
or more dates prior to the stated maturity, the amount which shall be deemed to be the principal amount of such debt securities
as of any such date for any purpose, including the principal amount thereof which shall be due and payable upon any maturity other
than the stated maturity or which shall be deemed to be outstanding as of any date prior to the stated maturity (or, in any such
case, the manner in which such amount deemed to be the principal amount shall be determined); and
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any
other specific terms of the debt securities, including any modifications to the events of default under the debt securities and
any other terms which may be required by or advisable under applicable laws or regulations.
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Unless otherwise specified
in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. Holders of the debt
securities may present registered debt securities for exchange or transfer in the manner described in the applicable prospectus
supplement. Except as limited by the applicable Indenture, we will provide these services without charge, other than any tax or
other governmental charge payable in connection with the exchange or transfer.
Debt securities may
bear interest at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified in the prospectus
supplement, we may sell debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing
market rate, or at a discount below their stated principal amount. We will describe in the applicable prospectus supplement any
special federal income tax considerations applicable to these discounted debt securities.
We may issue debt securities
with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date,
to be determined by referring to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders
of such debt securities may receive a principal amount on any principal payment date, or interest payments on any interest payment
date, that are greater or less than the amount of principal or interest otherwise payable on such dates, depending upon the value
on such dates of applicable currency, commodity, equity index or other factors. The applicable prospectus supplement will contain
information as to how we will determine the amount of principal or interest payable on any date, as well as the currencies, commodities,
equity indices or other factors to which the amount payable on that date relates and certain additional tax considerations.
Warrants
We may issue warrants
for the purchase of our common share, preferred share or debt securities or any combination thereof. Warrants may be issued independently
or together with our common share, preferred share or debt securities and may be attached to or separate from any offered securities.
To the extent warrants that we issue are to be publicly-traded, each series of such warrants will be issued under a separate warrant
agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our
agent in connection with such warrants. The warrant agent will not have any obligation or relationship of agency or trust for or
with any holders or beneficial owners of warrants.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form
6-K that we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement relating to any warrants
that we may offer will contain the specific terms of the warrants and a description of the material provisions of the applicable
warrant agreement, if any. These terms may include the following:
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the
title of the warrants;
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the
price or prices at which the warrants will be issued;
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the
designation, amount and terms of the securities or other rights for which the warrants are exercisable;
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the
designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued
with each other security;
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the
aggregate number of warrants;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
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the
price or prices at which the securities or other rights purchasable upon exercise of the warrants may be purchased;
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if
applicable, the date on and after which the warrants and the securities or other rights purchasable upon exercise of the warrants
will be separately transferable;
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a
discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants;
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the
date on which the right to exercise the warrants will commence, and the date on which the right will expire;
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the
maximum or minimum number of warrants that may be exercised at any time;
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information
with respect to book-entry procedures, if any; and
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any
other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Exercise of Warrants.
Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights, at the exercise price stated
or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business
on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement.
After the close of business on the expiration date, if applicable, unexercised warrants will become void. Warrants may be exercised
in the manner described in the applicable prospectus supplement. When the warrant holder makes the payment and properly completes
and signs the warrant certificate at the corporate trust office of the warrant agent, if any, or any other office indicated in
the prospectus supplement, we will, as soon as possible, forward the securities or other rights that the warrant holder has purchased.
If the warrant holder exercises less than all of the warrants represented by the warrant certificate, we will issue a new warrant
certificate for the remaining warrants.
Rights
We may issue rights
to purchase our securities. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection
with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other
persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after
such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us
and one or more banks, trust companies or other financial institutions, as rights agent, that we will name in the applicable prospectus
supplement. The rights agent will act solely as our agent in connection with the rights and will not assume any obligation or relationship
of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement
relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
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the
date of determining the security holders entitled to the rights distribution;
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the
aggregate number of rights issued and the aggregate amount of securities purchasable upon exercise of the rights;
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the
conditions to completion of the rights offering;
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the
date on which the right to exercise the rights will commence and the date on which the rights will expire; and
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any
applicable federal income tax considerations.
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Each right would entitle
the holder of the rights to purchase for cash the principal amount of securities at the exercise price set forth in the applicable
prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided
in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become
void.
If less than all of
the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than
our security holders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant
to standby arrangements, as described in the applicable prospectus supplement.
Units
We may issue units
consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence
each series of units by unit certificates that we may issue under a separate agreement. We may enter into unit agreements with
a unit agent. Each unit agent, if any, may be a bank or trust company that we select. We will indicate the name and address of
the unit agent, if any, in the applicable prospectus supplement relating to a particular series of units. Specific unit agreements,
if any, will contain additional important terms and provisions. We will file as an exhibit to the registration statement of which
this prospectus is a part, or will incorporate by reference from a current report that we file with the SEC, the form of unit and
the form of each unit agreement, if any, relating to units offered under this prospectus.
If we offer any units,
certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation,
the following, as applicable
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the
title of the series of units;
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identification
and description of the separate constituent securities comprising the units;
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the
price or prices at which the units will be issued;
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the
date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a
discussion of certain United States federal income tax considerations applicable to the units; and
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any
other material terms of the units and their constituent securities.
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ENFORCEABILITY OF CIVIL LIABILITIES
We incorporated in
the Cayman Islands in order to enjoy the following benefits: (1) political and economic stability; (2) an effective judicial system;
(3) a favorable tax system; (4) the absence of exchange control or currency restrictions; and (5) the availability of professional
and support services.
However, certain disadvantages
accompany incorporation in the Cayman Islands. These disadvantages include, but are not limited to, the following: (1) the Cayman
Islands has a less developed body of securities laws as compared to the United States and these securities laws provide significantly
less protection to investors; and (2) Cayman Islands companies may not have standing to sue before the federal courts of the United
States.
Our constitutional
documents do not contain provisions requiring that disputes, including those arising under the securities laws of the United States,
between us, our officers, directors and shareholders, be arbitrated.
All of our operations
are conducted outside the United States, and all of our assets are located outside the United States. All of our officers are nationals
or residents of jurisdictions other than the United States and a substantial portion of their assets are located outside the United
States. As a result, it may be difficult for a shareholder to effect service of process within the United States upon these persons,
or to enforce against us or them judgments obtained in United States courts, including judgments predicated upon the civil liability
provisions of the securities laws of the United States or any state in the United States.
We have appointed Puglisi
& Associates, located at Newark, Delaware, as our agent upon whom process may be served in any action brought against us under
the securities laws of the United States.
Conyers Dill &
Pearman, our counsel as to Cayman Islands law, and Zhong Lun Law Firm, our counsel as to PRC law, have advised us, respectively,
that there is uncertainty as to whether the courts of the Cayman Islands and China, respectively, would:
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recognize
or enforce judgments of United States courts obtained against us or our directors or officers predicated upon the civil liability
provisions of the securities laws of the United States or any state in the United States; or
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entertain
original actions brought in each respective jurisdiction against us or our directors or officers predicated upon the securities
laws of the United States or any state in the United States.
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Conyers Dill &
Pearman has advised us that it is uncertain whether the courts of the Cayman Islands will allow shareholders of our company to
originate actions in the Cayman Islands based upon securities laws of the United States. In addition, there is uncertainty with
regard to Cayman Islands law related to whether a judgment obtained from the U.S. courts under civil liability provisions of U.S.
securities laws will be determined by the courts of the Cayman Islands as penal or punitive in nature. If such determination is
made, the courts of the Cayman Islands will not recognize or enforce the judgment against a Cayman Islands company, such as our
company. As the courts of the Cayman Islands have yet to rule on making such a determination in relation to judgments obtained
from U.S. courts under civil liability provisions of U.S. securities laws, it is uncertain whether such judgments would be enforceable
in the Cayman Islands. Conyers Dill & Pearman has further advised us that although there is no statutory enforcement in the
Cayman Islands of judgments obtained in the United States, a judgment obtained in such jurisdiction will be recognized and enforced
in the courts of the Cayman Islands at common law, without any re-examination of the merits of the underlying dispute, by an action
commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided such judgment (a) is given by a foreign
court of competent jurisdiction, (b) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment
has been given, (c) is final, (d) is not in respect of taxes, a fine or a penalty and (e) was not obtained in a manner and is not
of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands.
Zhong Lun Law Firm
has advised us that the recognition and enforcement of foreign judgments are provided for under PRC Civil Procedure Law. PRC courts
may recognize and enforce foreign judgments in accordance with the requirements of PRC Civil Procedure Law based either on treaties
between China and the country where the judgment is made or on reciprocity between jurisdictions. China does not have any treaties
or other form of reciprocity with the United States or the Cayman Islands that provide for the reciprocal recognition and enforcement
of foreign judgments. In addition, according to the PRC Civil Procedure Law, courts in the PRC will not enforce a foreign judgment
against us or our directors and officers if they decide that the judgment violates the basic principles of PRC law or national
sovereignty, security or public interest. As a result, it is uncertain whether and on what basis a PRC court would enforce a judgment
rendered by a court in the United States or in the Cayman Islands.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITY
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
EXPENSES
The following table
sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered hereby,
other than underwriting discounts and commissions, all of which shall be borne by the registrant. All of such fees and expenses,
except for the SEC registration fee, are estimated:
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SEC registration fee
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$
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25,733
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FINRA filing fee
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(1)
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Legal fees and expenses
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(1)
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Accounting fees and expenses
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(1)
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Miscellaneous
fees and expenses
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(1)
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Total
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$
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(1)
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(1)
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To
be provided by a prospectus supplement or as an exhibit to a Report on Form 6-K that is incorporated by reference into this prospectus.
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LEGAL MATTERS
The validity of the
issuance of the securities offered hereby will be passed upon for us by Hunter Taubman Fischer & Li LLC of New York, New York
and by Conyers Dill & Pearman to the extent governed by the laws of the Cayman Islands. Additional legal matters may be passed
upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements
of the Company as of December 31, 2019 and 2018 and for the fiscal years ended December 31, 2019 and 2018 incorporated by reference
in this prospectus and the registration statement have been so incorporated in reliance on the report of Friedman LLP, an independent
registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing
and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes
a part of a registration statement on Form F-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus
and any prospectus supplement, which form a part of the registration statement, do not contain all the information that is included
in the registration statement. You will find additional information about us in the registration statement and its exhibits. Any
statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you
should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete
understanding of the document or matter.
You can read our SEC
filings, including the registration statement, over the internet at the SEC’s website at www.sec.gov. You may
also read and copy any document we file with the SEC at its public reference facilities at 100 F Street, N.E., Washington, D.C.
20549. You may also obtain copies of these documents at prescribed rates by writing to the Public Reference Section of the SEC
at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of
the public reference facilities.
We are subject to the
information reporting requirements of the Exchange Act, and we file reports, proxy statements and other information with the SEC.
These reports, proxy statements and other information will be available for inspection and copying at the public reference room
and website of the SEC referred to above. We also maintain a website at www.powerbridge.com, at which you may access these
materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC.
However, the information contained in or accessible through our website is not part of this prospectus or the registration statement
of which this prospectus forms a part, and investors should not rely on such information in making a decision to purchase our Ordinary
Share in this offering.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC permits us
to “incorporate by reference” into this prospectus the information contained in documents that we file with the SEC,
which means that we can disclose important information to you by referring you to those documents. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
Information that we file later with the SEC will automatically update and supersede the information that is either contained, or
incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents
are filed. We have filed with the SEC and incorporate by reference in this prospectus, except as superseded, supplemented or modified
by this prospectus, the documents listed below:
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The annual report on Form 20-F for the fiscal year ended December 31, 2019, filed on June 24, 2020;
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The Form 6-K filed on February 9, 2021, December 10, 2020, December 3, 2020, November 25, 2020, November 6, 2020, October 6, 2020, September 30, 2020, September 8, 2020, August 28, 2020, July 28, 2020, and July 2, 2020;
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The registration statement and final prospectus for the Company’s initial public offering, filed on April 2, 2019; and
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Our Registration Statement on Form 8-A, filed with the SEC on March 27, 2019, including any amendments or reports filed for the purpose of updating the description of our Ordinary Share therein.
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We also incorporate
by reference into this prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date hereof but before the completion or termination of this offering (excluding any information not
deemed “filed” with the SEC).
Any statement contained
in a previously filed document is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in a subsequently filed document incorporated by reference herein modifies or supersedes the statement,
and any statement contained in this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent
that a statement contained in a subsequently filed document incorporated by reference herein modifies or supersedes the statement.
We will provide, without
charge, to each person to whom a copy of this prospectus is delivered, including any beneficial owner, upon the written or oral
request of such person, a copy of any or all of the documents incorporated by reference herein, including exhibits. Requests should
be directed to:
POWERBRIDGE TECHNOLOGIES CO., LTD.
1st Floor, Building D2, Southern Software
Park
Tangjia Bay, Zhuhai, Guangdong 519080, China
Tel: +86-756-339-5666
Copies of these filings are also available
on our website at www.powerbridge.com. For other ways to obtain a copy of these filings, please refer to “Where
You Can Find More Information” above.
POWERBRIDGE TECHNOLOGIES CO., LTD.
$30,000,000
Ordinary Share
On February 23, 2021,
we entered into a certain Sales Agreement, or sales agreement, with A.G.P. / Alliance Global Partners, or A.G.P., relating to our
Ordinary Shares offered by this prospectus. In accordance with the terms of the sales agreement, we may offer and sell Ordinary
Shares having an aggregate offering price of up to $30,000,000 from time to time through A.G.P.
Our Ordinary Shares
are currently listed on the Nasdaq Capital Market under the symbol “PBTS.” On February 22, 2021, the last reported
sale price of our Ordinary Shares on the Nasdaq Capital Market was $4.37 per share.
Sales of our Ordinary
Share, if any, under this prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule
415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. If authorized by us in writing, A.G.P. may
also sell shares of our Ordinary Share in negotiated transactions at market prices prevailing at the time of sale or at prices
related to such prevailing market prices. A.G.P. is not required to sell any specific number or dollar amount of securities, but
will act as a sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually
agreed terms between A.G.P. and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to
A.G.P. for sales of Ordinary Share sold pursuant to the sales agreement will be equal to 3.5% of the gross proceeds of any Ordinary
Shares sold under the sales agreement. In connection with the sale of the Ordinary Shares on our behalf, A.G.P. will be deemed
to be an “underwriter” within the meaning of the Securities Act and the compensation of A.G.P. will be deemed to be
underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to A.G.P. with respect to
certain liabilities, including liabilities under the Securities Act or the Exchange Act of 1934, as amended, or the Exchange Act.
Investing in
our Ordinary Shares involves risks. See “Risk Factors” beginning on page 5 of this prospectus, and under similar headings
in the other documents that are incorporated by reference into this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
A.G.P.
_______________, 2021
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus relates
to the offering of our Ordinary Shares. Before buying any of the Ordinary Shares that we are offering, we urge you to carefully
read this prospectus, together with the accompanying base prospectus and the information incorporated by reference as described
under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference”
in this prospectus, and any free writing prospectus or prospectus supplement that we have authorized for use in connection with
this offering. These documents contain important information that you should consider when making your investment decision.
This prospectus describes
the terms of this offering of Ordinary Shares and also adds to and updates information contained in the documents incorporated
by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the
one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the
Securities and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information
in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later
date — for example, a document incorporated by reference into this prospectus — the statement in the document having
the later date modifies or supersedes the earlier statement.
We have not, and the
sales agent has not, authorized anyone to provide you with information different than that contained or incorporated by reference
in this prospectus and any free writing prospectus or prospectus supplement that we have authorized for use in connection with
this offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that
others may give you. You should assume that the information appearing in this prospectus, the documents incorporated by reference
herein, and in any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering
is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects
may have changed since those dates. You should read this prospectus, the documents incorporated by reference herein, and any free
writing prospectus or prospectus supplement that we have authorized for use in connection with this offering in their entirety
before making an investment decision.
We are offering to
sell, and are seeking offers to buy, the shares only in jurisdictions where such offers and sales are permitted. The distribution
of this prospectus and the offering of the shares in certain jurisdictions or to certain persons within such jurisdictions may
be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about
and observe any restrictions relating to the offering of the shares and the distribution of this prospectus outside the United
States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an
offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person
to make such an offer or solicitation.
We own or have rights
to various trademarks, service marks and trade names that we use in connection with the operation of our business. This prospectus
may also contain trademarks, service marks and trade names of third parties, which are the property of their respective owners.
Our use or display of third parties’ trademarks, service marks, trade names or products in this prospectus is not intended
to, and does not imply a relationship with, or endorsement or sponsorship by us. Solely for convenience, the trademarks, service
marks and trade names referred to in this prospectus may appear without the ®, TM or SM symbols,
but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law,
our rights or the right of the applicable licensor to these trademarks, service marks and trade names.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including
the documents that we incorporate by reference, contain forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act of 1934, as amended (the “Exchange Act”), which represent our expectations
or beliefs concerning future events. Forward-looking statements include statements that are predictive in nature, which depend
upon or refer to future events or conditions, and/or which include words such as “believes,” “plans,” “intends,”
“anticipates,” “estimates,” “expects,” “may,” “will” or similar expressions.
In addition, any statements concerning future financial performance, ongoing strategies or prospects, and possible future actions,
which may be provided by our management, are also forward-looking statements. Forward-looking statements are based on current expectations
and projections about future events and are subject to risks, uncertainties, and assumptions about our company, economic and market
factors, and the industry in which we do business, among other things. These statements are not guarantees of future performance,
and we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future
events, or otherwise, except as required by law. Actual events and results may differ materially from those expressed or forecasted
in forward-looking statements due to a number of factors. Factors that could cause our actual performance, future results and actions
to differ materially from any forward-looking statements include, but are not limited to, those discussed under the heading “Risk
Factors” in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. The forward-looking
statements in this prospectus, the applicable prospectus supplement or any amendments thereto and the information incorporated
by reference in this prospectus represent our views as of the date such statements are made. These forward-looking statements should
not be relied upon as representing our views as of any date subsequent to the date such statements are made.
PROSPECTUS
SUMMARY
The following summary is qualified in
its entirety by, and should be read together with, the more detailed information and financial statements and related notes thereto
appearing elsewhere or incorporated by reference in this prospectus. Before you decide to invest in our securities, you should
read the entire prospectus carefully, including the risk factors and the financial statements and related notes included or incorporated
by reference in this prospectus.
Unless otherwise indicated or unless
the context requires otherwise, this prospectus includes the accounts of Powerbridge Technologies Co., Ltd., a Cayman Islands company
and its wholly-owned subsidiaries, collectively referred to as “we”, “us”, “Powerbridge” or
the “Company”.
Overview
We are a provider of
software application and technology solutions and services to corporate and government customers primarily located in China. We
introduced global trade software applications when we launched our operations in 1997 with a vision to make global trade operations
easier for our customers. Since our inception, we have continued to innovate by developing technologies that enable us to successfully
deliver a series of solutions and services that address the evolving and changing needs of our corporate and government customers.
Our mission is to make global trade easier by empowering all players in the ecosystem.
With the rapid growth
of advertisement and media industrial in recent years, we believe that there is a substantial market opportunity to operate an
out-of-home digital display advertising and media technology platform in the Greater Bay Area of China. We also see the potential
to further expand our business into such industry, which could be supported by the success of our own Big Data platforms/products.
As a result, we started to implement our plan to build a network of digital display and operate an advertisement platform since
October 2020 by using our Big Data platform and services.
Our customers
are corporate and government organizations engaged in global trade. Our corporate customers are import and export companies, manufacturers
engaged in international trade, as well as logistics and other service providers. Our government customers include customs and
other government agencies that oversee the flow of goods and services across borders, as well as government authorities and organizations
that manage and operate free trade and bonded trade zones, ports and terminals, and other international trade facilities.
Global trade involves
complicated and cumbersome processing, manual handling of voluminous documents, extended and complex cross-organization workflows
as well as a great number of business and government players in the global trade ecosystem. Our customers are facing increasing
challenges as the world’s trade ecosystems continue to grow in size and complexity. Costs associated with global trade, such
as logistics performance, border control and international connectivity remain high. Potential savings from more collaborative
and efficient trade processes could reduce the costs of global trade significantly. The need for greater efficiency and cost savings
are driving the transformative shift for participants in global trade to become more connected and collaborative.
Our comprehensive and
robust solutions and services include Powerbridge System Solutions and Powerbridge SaaS Services with
more than 50 solutions and services deployable on premise and in the cloud. Leveraging our deep domain knowledge and strong industry
experience, we provide a series of differentiated and robust solutions and services that address the mission critical needs of
our corporate and government customers, enabling them to handle and simplify the complexities of global trade operations, logistics
and compliance.
We provide Powerbridge
System Solutions to our corporate and government customers engaged in global trade, including businesses and manufacturers
across a broad range of industries, government agencies and regulatory authorities, as well as global trade logistics and other
service providers. Powerbridge System Solutions enable our customers to streamline their trade operations, trade logistics
and regulatory compliance, consisting of Trade Enterprise Solutions and Trade Compliance Solutions which have been
in service since our first introduction twenty years ago and Import & Export Loan and Insurance Processing which have
recently been introduced to a selected group of customers.
We began offering our
Powerbridge SaaS Services (software-as-a-service) in 2016 and are continually developing and expanding our SaaS services
that provide our corporate and government customers with significant benefits, including better use of resources, a lower cost
of operations, easier document handling, faster processing time as well as higher logistics and compliance connectivity and efficiency.
Powerbridge SaaS Services include Logistics Service Cloud and Trade Zone Operations Cloud which are in service,
and Inward Processed Manufacturing Cloud, Cross-Border eCommerce Cloud and Import & Export Loan and Insurance Processing
Service Cloud which are in development.
We have begun offering
our cloud-based Powerbridge BaaS Services (blockchain-as-a-service) with designated use case for limited government
customers since June 2019 and we have not generated any revenue from it. We continue developing our BaaS Services for
market commercialization. Blockchain technology is emerging as a major disruptive force across many industries including those
involved in global trade. We believe that blockchain technology could allow our customers to conduct business in more synchronized
and collaborative ways to substantially increase operational efficiency and reduce trade costs across the global trade supply chain. Powerbridge
BaaS Service includes Compliance Blockchain Services and Supply Chain Blockchain Services.
Our solutions and services
are built from our multiple proprietary technology platforms which are developed based on industry leading open source infrastructure
technologies. Our technology platforms include Powerbridge System Platform and Powerbridge SaaS Platform,
which are designed for high-performance reliability, flexibility and scalability, allowing us to expand our solutions and services
rapidly and efficiently to consistently address the needs of our corporate and government customers. Our Powerbridge BaaS
Platform is in development and our BaaS services will be built on top of our Powerbridge Blockchain Platform that
is designed to provide high scalability and performance characteristics, consisting of multiple technology engines that support
the various business component models specific for trade transaction, trade logistics and regulatory compliance in global trade.
We intend to continue
leveraging our industry expertise and product knowledge with the best use of emerging and disruptive technologies such as big data,
artificial intelligence and Internet of Things to enhance our core technology capabilities and continually increase the scope of
our solutions and services to our customers.
Expansion Into Out-Of-Home Advertising
and Media
Since October 2020,
we started to implement our plan to build a network of digital display such as LCD screens and operate an advertisement platform
in Shenzhen initially, and then expand to the Greater Bay Area of China. We believe that there is a substantial market opportunity
to operate an out-of-home digital display advertising and media technology platform in the Greater Bay Area of China. We will focus
on display advertising in various high traffic advertising locations such as residential and office buildings, commercial parking
garages, and elevators in residential and office buildings.
We closed on a $50
million Note financing on October 27, 2020, which is in addition to the $17.5 million raised on August 24, 2020 in a private placement
of ordinary shares, par value $0.00166667. The funds raised are being used as prepayment for acquiring the right to operate and
publish advertisements at certain advertising space, as an efficient way of accelerating the Company’s entrance into the
out-of-home digital display advertising and media business.
On September 25, 2020,
Shenzhen Honghao Internet Technology Co. Ltd. (“Honghao”), a wholly-owned subsidiary of the Company, entered into a
leasing agreement (the “Original Leasing Agreement”) with Shenzhen Kezhi Technology Co., Ltd., a company incorporated
under the PRC laws (“Kezhi”), pursuant to which, Kezhi agreed to transfer the right to operate and publish advertisements
at certain advertising space it leases or controls in certain shopping centers in Shenzhen, Guangdong, to Honghao. No less than
75% of the advertising space as provided in the Original Leasing Agreement shall be delivered within 6 months and the remainder
shall be delivered within 12 months following the date of the Original Leasing Agreement. The Original Leasing Agreement became
effective on October 1, 2020 and shall expire on September 30, 2032.
Honghao agreed to pay
an aggregate rent of RMB150 million (approximately $22 million) within 3 months of the date of the Original Leasing Agreement.
Additionally, Honghao agreed to pay RMB10 million (approximately $1.67 million) as security deposit within 3 business days after
the date of the Original Leasing Agreement. Kezhi agreed to pledge certain Hainan Huanghua pear furniture it owns and currently
valued for RMB150 million (the “Collateral”) as guarantee for the rent payment made by Honghao pursuant to a separate
guarantee agreement to be agreed upon by and between Honghao and Kezhi. The parties agreed the Collateral shall be pledged for
the entire term of the lease and in the event the value of the Collateral is determined less than RMB150 million anytime during
the term of the guaranty, Kezhi shall provide additional collateral within three months of such determination to make sure that
aggregate value of the Collateral maintains at RMB150 million.
On November 20, 2020,
Honghao and Kezhi entered into a supplemental agreement to the Leasing Agreement (the “Supplemental Agreement”, together
with the Original Leasing Agreement, the “Leasing Agreement”), pursuant to which, Kezhi agreed to transfer the right
to operate and publish advertisements at certain additional advertising space it leased or controls in several urban villages in
Shenzhen, Guangdong, to Honghao.
Given that there was
no transfer of the right to operate and publish advertisements between October 1, 2020, the effective date of the Original Leasing
Agreement, and the date of the Supplemental Agreement, both parties agreed to change the effective date of the Original Leasing
Agreement from October 1, 2020 to January 1, 2021, which shall expire on December 31, 2040.
Honghao and Kezhi also
agreed to increase the rent from RMB150 million (approximately $22 million) to RMB 470 million (approximately $71 million) as consideration
for all the advertising space, the payment of which shall be made within 3 months of the date of the Supplemental Agreement. Accordingly,
Kezhi agreed to increase the value of the original collateral as provided in the Original Leasing Agreement from RMB150 million
to RMB 470 million. Additionally, both parties agreed to change the original payment schedule of the security deposit in an amount
of RMB10 million (approximately $1.67 million) as set forth in the Original Leasing Agreement from 3 business days after the date
of the Original Leasing Agreement to 3 business days after the date of the Supplemental Agreement.
Additionally, the Supplemental
Agreement provided the advertising space delivery schedule with at least 50% of the total advertising space to be delivered by
December 31, 2021 and the remainder to be delivered by December 31, 2022 (the “Delivery Schedule”). In the event Kezhi
fails to deliver the advertising space according to the Delivery Schedule, Honghao shall have the right to terminate the Leasing
Agreement and have the rent returned in full as well as demand damages due to Kezhi’s default. Furthermore, both parties
agreed that Honghao shall not be liable for any disputes, conflicts or lawsuits arising between Kezhi and any third party concerning
the advertising space provided thereof (the “Third Party Disputes”). In the event Kezhi is unable to continue to perform
all or part of its obligations under the Leasing Agreement due to third party disputes, Kezhi shall manage to locate similar replacement
of advertising space for Honghao within one month. The parties also agreed on the parties’ obligations to seek regulatory
approval to publish the advertisements, safe operation of the advertisement space, force majeure and other matters
customary to lease agreement of such nature.
As of the date of this
prospectus, we have not started the management of digital displays and have not generated any revenue under the outdoor advertising
business. We plan to initiate our outdoor advertising business in the second quarter of 2021, and expect to manage a network of
30,000 digital displays such as LCD screens as well as operate an advertisement platform in Guangdong province, China. We are partnered
with Kezhi, an advertising company in Shenzhen, to install and provide maintenance service for the digital displays while we will
operate the advertisement system by using our Big Data platform. We expect to generate our revenue from the monthly advertisement
fees charged to the advertisers. Supported by our Big Data platform, we are able to identify the most popular advertisements at
a given time and location. With such analysis result, we can help our customers to identify the place and time which attract the
most attention to their advertisements.
The following diagram
illustrates our current corporate structure:
As of the date of this
prospectus, Ningbo Powerbridge Pet Products Cross-border E-commerce Service Co., Ltd is dormant and has no operation.
Corporate Information
Our principal executive
office is located at 1st Floor, Building D2, Southern Software Park, Tangjia Bay, Zhuhai, Guangdong 519080, China. Our telephone
number is +86-756-339-5666. We maintain a website at www.powerbridge.com that contains information about our Company, though no
information contained on our website is part of this prospectus.
The Offering
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Ordinary Shares offered by us:
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Ordinary Shares having an aggregate offering price of up to $30,000,000.
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Manner of offering:
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“At the market offering” that may be made from time to time through our sales agent, A.G.P. See “Plan of Distribution” on page 7.
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Use of proceeds:
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We intend to use the net proceeds, if any, from this offering, for working capital and general corporate purposes. See “Use of Proceeds” on page 6.
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Risk Factors:
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Investing in our Ordinary Shares involves significant risks. See “Risk Factors” beginning on page 5 of this prospectus and other information included or incorporated by reference into this prospectus for a discussion of factors you should carefully consider before investing in our securities.
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NASDAQ Capital Market trading symbol:
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PBTS
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RISK FACTORS
An investment in our
Ordinary Share involves significant risks. You should carefully consider the risk factors contained in any prospectus supplement
and in our filings with the SEC, as well as all of the information contained in this prospectus and the related exhibits, any prospectus
supplement or amendments thereto, and the documents incorporated by reference herein or therein, before you decide to invest in
our Ordinary Shares. Our business, prospects, financial condition and results of operations may be materially and adversely affected
as a result of any of such risks. The value of our Ordinary Shares could decline as a result of any of these risks. You could lose
all or part of your investment in our Ordinary Shares. Some of our statements in sections entitled “Risk Factors”
are forward-looking statements. The risks and uncertainties that we have described are not the only ones that we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects,
financial condition and results of operations.
In addition to the
risk factors referenced above, as described in our most recent annual report on Form 20-F, we want to disclose the additional risk
factors below.
Risks Relating to this Offering
We may allocate the net proceeds
from this offering in ways that you or other shareholders may not approve.
We currently intend
to use the net proceeds of this offering, if any, for working capital and general corporate purposes, which may include capital
expenditures, research and development expenditures, regulatory affairs expenditures, clinical trial expenditures, acquisitions
of new technologies and investments, and the financing of possible acquisitions or business expansions. This expected use of the
net proceeds from this offering represents our intentions based upon our current plans and business conditions. The amounts and
timing of our actual expenditures may vary significantly depending on numerous factors, including the progress of our development
efforts, the status of and results from our newly developed outdoor advertisements business, and any unforeseen cash needs. Because
the number and variability of factors that will determine our use of the proceeds from this offering, their ultimate use may vary
substantially from their currently intended use. As a result, our management will retain broad discretion over the allocation of
the net proceeds from this offering and could spend the proceeds in ways that do not necessarily improve our operating results
or enhance the value of our Ordinary Shares. See “Use of Proceeds.”
USE
OF PROCEEDS
We currently intend
to use the net proceeds from this offering, if any, for working capital and general corporate purposes.
The timing and amount
of our actual expenditures will be based on many factors, including cash flows from operations and the anticipated growth of our
business. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to
us from this offering. As a result, our management will have broad discretion regarding the timing and application of the net proceeds
from this offering.
MARKET PRICE OF OUR ORDINARY SHARES
Our Ordinary Share
is presently listed on The NASDAQ Capital Market under the symbol “PBTS”. On February 22, 2021, the last reported sale
price of our Ordinary Share was $4.37.
DIVIDEND
POLICY
We have never declared
or paid cash dividends on our capital stock. We currently intend to retain our future earnings, if any, for use in our business
and therefore do not anticipate paying cash dividends in the foreseeable future. Payment of future dividends, if any, will be at
the discretion of our board of directors after taking into account various factors, including our financial condition, operating
results, current and anticipated cash needs and plans for expansion.
PLAN
OF DISTRIBUTION
We have entered into
the sales agreement with A.G.P. under which we may issue and sell Ordinary Shares from time to time up to $30,000,000 to or through
A.G.P., acting as our sales agent. The sales of our Ordinary Shares, if any, under this prospectus supplement will be made at market
prices by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act,
including sales made directly on The NASDAQ Capital Market, on any other existing trading market for our Ordinary Shares or to
or through a market maker.
Each time that we wish
to issue and sell Ordinary Shares under the sales agreement, we will provide A.G.P. with a placement notice describing the amount
of shares to be sold, the time period during which sales are requested to be made, any limitation on the amount of Ordinary Shares
that may be sold in any single day, any minimum price below which sales may not be made or any minimum price requested for sales
in a given time period and any other instructions relevant to such requested sales. Upon receipt of a placement notice, A.G.P.,
acting as our sales agent, will use commercially reasonable efforts, consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the rules of The NASDAQ Capital Market, to sell shares of our Ordinary
Shares under the terms and subject to the conditions of the placement notice and the sales agreement. We or A.G.P. may suspend
the offering of Ordinary Shares pursuant to a placement notice upon notice and subject to other conditions.
Settlement for sales
of Ordinary Shares, unless the parties agree otherwise, will occur on the second trading day following the date on which any sales
are made in return for payment of the net proceeds to us. There are no arrangements to place any of the proceeds of this offering
in an escrow, trust or similar account. Sales of our Ordinary Shares as contemplated in this prospectus supplement will be settled
through the facilities of The Depository Trust Company or by such other means as we and A.G.P. may agree upon.
We will pay A.G.P.
commissions for its services in acting as our sales agent in the sale of our Ordinary Shares pursuant to the sales agreement. A.G.P.
will be entitled to compensation at a fixed commission rate of 3.5% of the gross proceeds from the sale of our Ordinary Shares
on our behalf pursuant to the sales agreement. We have also agreed to reimburse A.G.P. for its reasonable and documented out-of-pocket
expenses (including legal fees and expenses) in an amount not to exceed $45,000 for implementation and up to an additional $8,000
per fiscal year for maintenance.
We estimate that the
total expenses for this offering, excluding compensation payable to A.G.P. and certain expenses reimbursable to A.G.P. under the
terms of the sales agreement, will be approximately $30,000,000. The remaining sales proceeds, after deducting any expenses
payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with
the sales, will equal our net proceeds for the sale of such Ordinary Shares.
Because there are no
minimum sale requirements as a condition to this offering, the actual total public offering price, commissions and net proceeds
to us, if any, are not determinable at this time. The actual dollar amount and number of Ordinary Shares we sell through this prospectus
supplement will be dependent, among other things, on market conditions and our capital raising requirements.
We will report at least
quarterly the number of Ordinary Shares sold through A.G.P. under the sales agreement, the net proceeds to us and the compensation
paid by us to A.G.P. in connection with the sales of Ordinary Shares under the sales agreement.
In connection with
the sale of Ordinary Shares on our behalf, A.G.P. will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation of A.G.P. will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to A.G.P. against certain civil liabilities, including liabilities under the Securities Act.
A.G.P. will not engage
in any market making activities involving our Ordinary Shares while the offering is ongoing under this prospectus supplement if
such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. As our sales
agent, A.G.P. will not engage in any transactions that stabilizes our Ordinary Shares.
The offering pursuant
to the sales agreement will terminate upon the earlier of (i) the sale of all Ordinary Shares subject to the sales agreement and
(ii) termination of the sales agreement as permitted therein. We may terminate the sales agreement in our sole discretion at any
time by giving 10 days’ prior notice to A.G.P. A.G.P. may terminate the sales agreement under the circumstances specified
in the sales agreement and in its sole discretion at any time by giving 10 days’ prior notice to us.
A.G.P. and/or its affiliates
have provided, and may in the future provide, various investment banking and other financial services for us, for which services
they have received and may in the future receive customary fees.
This prospectus supplement
in electronic format may be made available on a website maintained by A.G.P., and A.G.P. may distribute this prospectus supplement
electronically.
LEGAL
MATTERS
The validity of the
Ordinary Shares offered by this prospectus will be passed upon by Hunter Taubman Fischer and Li LLC, New York, New York. A.G.P.
/ Alliance Global Partners is being represented in connection with this offering by Schiff Hardin LLP.
EXPERTS
Our audited consolidated
financial statements as of December 31, 2019 and 2018 are incorporated by reference in this prospectus and any prospectus supplement,
which form a part of the registration statement, have been audited by Friedman LLP, independent registered public accountants,
to the extent and for the periods set forth in their report incorporated by reference herein, and in reliance on such report given
upon the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This prospectus is
part of the registration statement on Form F-3 we filed with the Securities and Exchange Commission, or SEC, under the Securities
Act, and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus
to any of our contracts, agreements or other documents, the reference may not be complete, and you should refer to the exhibits
that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into
this prospectus for a copy of such contract, agreement or other document. You may inspect a copy of the registration statement,
including the exhibits and schedules, without charge, at the SEC’s public reference room mentioned below, or obtain a copy from
the SEC upon payment of the fees prescribed by the SEC.
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. You may read, without charge, and copy the documents
we file at the SEC’s public reference rooms in Washington, D.C. at 100 F Street, NE, Washington, DC 20549. You can request
copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our SEC filings are also available to the public at no cost from the SEC’s
website at http://www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We incorporate by reference
the filed documents listed below, except as superseded, supplemented or modified by this prospectus, and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (unless otherwise noted, the SEC file number
for each of the documents listed below is 001- 38851):
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Annual Report on Form
20-F for the year ended December 31, 2019, filed on June 24, 2020;
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The Form 6-K filed on February 9, 2021, December 10, 2020, December 3, 2020, November 25, 2020, November 6, 2020, October 6, 2020, September 30, 2020, September 8, 2020, August 28, 2020, July 28, 2020, and July 2, 2020;
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The registration statement and final prospectus for the Company’s initial public offering, filed on April 2, 2019; and
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Our Registration Statement on Form 8-A, filed with the SEC on March 27, 2019, including any amendments or reports filed for the purpose of updating the description of our Ordinary Shares therein.
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We also incorporate
by reference into this prospectus additional documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form
8-K and exhibits on such form that are related to such items) that we may file with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the completion or termination of the offering, including all such documents we may file with
the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but
excluding any information deemed furnished and not filed with the SEC. Any statements contained in a previously filed document
incorporated by reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent
that a statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies
or supersedes that statement.
This prospectus may
contain information that updates, modifies or is contrary to information in one or more of the documents incorporated by reference
in this prospectus. You should rely only on the information incorporated by reference or provided in this prospectus. We have not
authorized anyone else to provide you with different information. You should not assume that the information in this prospectus
is accurate as of any date other than the date of this prospectus, or the date of the documents incorporated by reference in this
prospectus.
We will provide to
each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no cost to
the requester, a copy of any and all of the information that is incorporated by reference in this prospectus.
You may request, and
we will provide you with, a copy of these filings, at no cost, by contacting us at:
1st Floor, Building D2, Southern Software
Park
Tangjia Bay, Zhuhai, Guangdong 519080, China
Tel: +86-756-339-5666
POWERBRIDGE TECHNOLOGIES CO., LTD.
$30,000,000
Ordinary Shares
PROSPECTUS
A.G.P.
______________, 2021
PART II - INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 8. Indemnification of Officers
and Directors.
The Companies Law does
not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers
and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy,
such as to provide indemnification against civil fraud or the consequences of committing a crime. Our Fourth Amended and Restated
Memorandum and Articles of Association permit indemnification of officers and directors for losses, damages, costs and expenses
incurred in their capacities as such unless such losses or damages arise from dishonesty of such directors or officers willful
default of fraud. This standard of conduct is generally the same as permitted under the Delaware General Corporation Law for a
Delaware corporation. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors,
officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 9. Exhibits
EXHIBIT INDEX
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Exhibit No.
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Description of Exhibit
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1.01*
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Sales Agreement, dated February 23, 2021, by and between Powerbridge Technologies Co., Ltd. and A.G.P. / Alliance Global Partners, filed herewith.
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3.01*
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Amended and Restated Memorandum and Articles of Association, filed as an exhibit to Form 6-K, filed with the Commission on November 6, 2020, and incorporated herein by reference.
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4.1**
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Form of Debt Securities
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4.2**
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Form of Warrant Agreement, if any, including form of Warrant
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4.3**
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Form of Preferred share Certificate of Designation
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4.4**
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Form of Right Certificate
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4.5*
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Form of indenture with respect to subordinated debt securities, to be entered into between registrant and a trustee acceptable to the registrant, if any.
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4.6*
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Form of indenture with respect to senior debt securities, to be entered into between registrant and a trustee acceptable to the registrant, if any
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5.1*
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Opinion of Conyers Dill & Pearman
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23.1*
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Consent of Friedman LLP
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23.2*
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Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
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24.1*
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Power of Attorney (see signature page of this registration statement)
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**
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To
be filed by amendment or as an exhibit to a filing with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934
and incorporated by reference in connection with the offering of securities to the extent required for any such offering.
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Item 10. Undertakings
The undersigned registrant
hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of the 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
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provided, however,
that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above 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 Securities and
Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in this registration statement or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of this registration statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, as amended, 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;
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(3)
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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;
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424 (b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement; and
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(ii)
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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, as amended, shall be deemed to be part of and included in the registration statement as of the earlier of the date such 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;
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, to 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:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
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(7)
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To supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering;
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(8)
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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 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act; and
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(9)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, 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, as amended, and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 Form F-3 to be signed on its behalf by the undersigned, thereunto
duly authorized on February 23, 2021.
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POWERBRIDGE TECHNOLOGIES CO., LTD.
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By:
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/s/ Stewart Lor
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Stewart Lor
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Co-Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENTS, that each person whose individual signature appears below hereby authorizes and appoints Ban Lor and Stewart Lor, and
each of them, with full power of substitution and resubstitution and full power to act without the other, as his true and lawful
attorney-in-fact and agent to act in his or her name, place and stead, and to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file any and all amendments to this registration statement, any related
registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or all pre- or post-effective
amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the
U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents
and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorneys-in-fact and agents,
and each of them, or any substitute or substitutes for each of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, the following persons in the capacities and on the dates indicated have signed this registration statement
below.
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Signature
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Title
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Date
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/s/ Ban Lor
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Co-Chief Executive Officer and Co-Chairman of the Board
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February 23, 2021
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Ban Lor
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/s/ Stewart Lor
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Co-Chief Executive Officer, Chief Financial Officer and Co-Chairman of the Board
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February
23, 2021
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Stewart Lor
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/s/ Liping Shu
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Chief Marketing Officer
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February
23, 2021
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Liping Shu
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/s/ Xiuhe Jiang
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Chief Product Officer
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February
23, 2021
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Xiuhe Jiang
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/s/ Tianfei Feng
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Chief Research and Development Officer
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February
23, 2021
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Tianfei Feng
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/s/ Yuping Ouyang
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Independent Director
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February 23,
2021
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Yuping Ouyang
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/s/ Bo Wu
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Independent Director
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February 23,
2021
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Bo Wu
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SIGNATURE OF AUTHORIZED REPRESENTATIVE
IN THE UNITED STATES
Pursuant to the Securities
Act of 1933 as amended, the undersigned, the duly authorized representative in the United States of America of Powerbridge Technologies
Co., Ltd., has signed this registration statement thereto in Newark, DE on February 23 2021.
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Puglisi & Associates
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By:
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/s/ Donald J. Puglisi
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Name:
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Donald J. Puglisi
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Title:
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Managing Director
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II-5
Exhibit 1.01
POWERBRIDGE
TECHNOLOGIES CO., LTD.
ORDINARY
SHARES
SALES
AGREEMENT
February 23, 2021
A.G.P./Alliance Global Partners
590 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
Powerbridge Technologies
Co., Ltd., a Cayman Islands company (the “Company”), confirms its agreement (this “Agreement”)
with A.G.P./Alliance Global Partners, as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement as set forth below, on the
terms and subject to the conditions set forth herein, it may issue and sell to or through A.G.P./Alliance Global Partners, acting
as agent and/or principal (the “Sales Agent”), the Company’s ordinary shares, par value $0.00166667
per share (the “Ordinary Shares”), subject to the limitations set forth in Section 3(b) hereof.
The issuance and sale of Ordinary Shares to or through the Sales Agent will be effected pursuant to the Registration Statement
(as defined below) filed by the Company and declared effective under the Securities Act (as defined below) by the U.S. Securities
and Exchange Commission (the “Commission”).
The term of this Agreement
shall commence on the date on which the Registration Statement (as defined below) is declared effective by the Commission and shall
end upon the termination or expiration of this Agreement in accordance with Section 11.
On the date of this
Agreement, the Company has filed, or will file, in accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the “Securities Act”), with the Commission, a shelf
registration statement on Form F-3, including a base prospectus (the “Base Prospectus”), relating to
certain securities, including the Ordinary Shares, to be issued from time to time by the Company, and which incorporates by reference
documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has
prepared a prospectus specifically relating to the offering of Ordinary Shares pursuant to this Agreement included as part of such
registration statement (the “ATM Prospectus” and, together with the Base Prospectus, collectively, the
“Initial Prospectus”). As soon as practicable following the date that such registration statement is
declared effective, the Company will furnish to the Sales Agent, for use by the Sales Agent, copies of the ATM Prospectus included
as part of such registration statement, relating to the Placement Shares (as defined below). Except where the context otherwise
requires, such registration statement, as amended when it becomes effective, including all documents filed as part thereof or incorporated
by reference therein, and including any information contained in any prospectus subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of
the Securities Act, is herein called the “Registration Statement.” The Initial Prospectus, including
all documents incorporated therein by reference (to the extent such information has not been superseded or modified in accordance
with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), as may be supplemented from time to
time by any additional prospectus supplement, in the form in which such Base Prospectus and/or ATM Prospectus have most recently
been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer
free writing prospectus” (“Issuer Free Writing Prospectus”), as defined in Rule 433 of the Securities
Act (“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission
by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g),
is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein,
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to
the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to either the Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive
Data Electronic Applications (collectively “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell the Ordinary Shares through the Sales Agent, as agent, hereunder (each, a “Placement”),
it will notify the Sales Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires the Ordinary Shares to be sold, which shall
at a minimum include the number of Ordinary Shares to be issued (the “Placement Shares”), the time period
during which sales are requested to be made, any limitation on the number of Ordinary Shares that may be sold in any one Trading
Day (as defined in Section 3) and any minimum price below which sales may not be made, a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from the Sales Agent set forth on Schedule 2,
as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by the
Sales Agent unless and until (i) in accordance with the notice requirements set forth in Section 4, the Sales Agent declines
to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares have
been sold, (iii) in accordance with the notice requirements set forth in Section 4, the Company suspends or terminates the
Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated
Placement Notice, or (v) the Agreement has been terminated under the provisions of Section 11. The amount of any discount,
commission or other compensation to be paid by the Company to the Sales Agent in connection with the sale of the Placement Shares
through the Sales Agent, as agent, shall be as set forth in Schedule 3. It is expressly acknowledged and agreed that
neither the Company nor the Sales Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to the Sales Agent and the Sales Agent does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Sales Agent.
(a) Subject to the terms
and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Sales Agent, as agent for the Company, will use its commercially reasonable efforts consistent with its normal trading and
sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Capital Market (the “Exchange”),
for the period specified in the Placement Notice, to sell such Placement Shares up to the amount specified by the Company in, and
otherwise in accordance with the terms of such Placement Notice. If acting as agent hereunder, the Sales Agent will provide written
confirmation to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule
2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other
than via auto-reply) no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which
it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the volume-weighted
average price of the Placement Shares, the compensation payable by the Company to the Sales Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions
made by the Sales Agent (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law deemed to be an
“at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales made directly
on the Exchange, on any other existing trading market for the Ordinary Shares or to or through a market maker. Subject to the terms
of a Placement Notice, the Sales Agent may also sell Placement Shares by any other method permitted by law, including but not limited
to in negotiated transactions with the Company’s prior written consent. The Company acknowledges and agrees that (i) there
can be no assurance that the Sales Agent will be successful in selling Placement Shares, (ii) the Sales Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
law and regulations to sell such Placement Shares as required under this Agreement and (iii) the Sales Agent shall be under no
obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Sales
Agent and the Company in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading Day”
means any day on which the Company’s Ordinary Shares are purchased and sold on the principal market on which the Ordinary
Shares are listed or quoted.
(b) Under no circumstances
shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale of such Placement
Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed the lesser
of: (i) the number or dollar amount of Ordinary Shares registered pursuant to the Registration Statement pursuant to which the
offering hereunder is being made, (ii) the number of authorized but unissued and unreserved Ordinary Shares, (iii) the number or
dollar amount of Ordinary Shares permitted to be offered and sold by the Company under Form F-3 (including General Instruction
I.B.5. of Form F-3, if and for so long as applicable), (iv) the number or dollar amount of Ordinary Shares authorized from time
to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof
or a duly authorized executive committee, and notified to the Sales Agent in writing, or (v) the number or dollar amount of Ordinary
Shares for which the Company has filed the ATM Prospectus or other prospectus supplement specifically relating to the offering
of the Placement Shares pursuant to this Agreement. Under no circumstances shall the Company cause or request the offer or sale
of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the
Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified
to the Sales Agent in writing. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree
that compliance with the limitations set forth in this Section 3(b) on the number or dollar amount of Placement Shares that
may be issued and sold under this Agreement from time to time shall be the sole responsibility of the Company, and that the Sales
Agent shall have no obligation in connection with such compliance.
(c) During the term of
this Agreement, neither the Sales Agent nor any of its affiliates or subsidiaries shall engage in (i) any short sale of any security
of the Company or (ii) any sale of any security of the Company that the Sales Agent does not own or any sale which is consummated
by the delivery of a security of the Company borrowed by, or for the account of, the Sales Agent. During the term of this Agreement
and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event will the Sales Agent or its affiliates
engage in any market making, bidding, stabilization or other trading activity with regard to the Ordinary Shares or related derivative
securities if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Exchange Act.
4. Suspension
of Sales.
(a) The Company or the
Sales Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the
other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply), suspend any sale of Placement Shares for a period of time (a “Suspension
Period”); provided, however, that such suspension shall not affect or impair either party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt and acknowledgement of such notice or Sales Notices issued
hereunder prior to the giving of such notice. Each of the parties agrees that no such notice under this Section 4 shall
be effective against the other unless it is made to one of the individuals named on Schedule 2 hereto, as such schedule
may be amended from time to time. During a Suspension Period, the Company shall not issue any Placement Notices and the Sales Agent
shall not sell any Placement Shares hereunder. The party that issued a suspension notice shall notify the other party in writing
of the Trading Day on which the Suspension Period shall expire not later than twenty-four (24) hours prior to such Trading Day.
(b) Notwithstanding any
other provision of this Agreement, during any period in which the Company is in possession of material non-public information,
the Company and the Sales Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request
the sale of any Placement Shares, and (iii) the Sales Agent shall not be obligated to sell or offer to sell any Placement Shares.
5. Settlement.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second (2nd) Trading
Day (or such earlier day as is industry practice for regular-way trading) following the respective Point of Sale (as defined below)
(each, a “Settlement Date”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales
price received by the Sales Agent at which such Placement Shares were sold, after deduction for (i) the Sales Agent’s discount,
commission or other compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts
due and payable by the Company to the Sales Agent hereunder pursuant to Section 7(g) (Expenses) hereof and (iii) any transaction
fees, trading expenses or execution fees imposed by any clearing organization or any governmental or self-regulatory organization
and any other fees incurred by the Sales Agent in respect of such sales.
(b) Delivery of Placement
Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided the Sales Agent shall
have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date,
the Sales Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to,
the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation
to deliver duly authorized Placement Shares on a Settlement Date, the Company agrees that, in addition to and in no way limiting
the rights and obligations set forth in Section 9(a) (Indemnification and Contribution) hereto, the Company will (i) hold
the Sales Agent, its directors, officers, members, partners, employees and agents of the Sales Agent, each broker dealer affiliate
of the Sales Agent, and each person, if any, who (A) controls the Sales Agent within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act or (B) is controlled by or is under common control with the Sales Agent (each, a “Sales
Agent Affiliate”), and the Sales Agent’s clearing organization, harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company
or its transfer agent (if applicable) and (ii) pay to the Sales Agent any commission, discount, or other compensation to which
it would otherwise have been entitled absent such default.
6. Representations
and Warranties of the Company. The Company, on behalf of itself and its subsidiaries, represents and warrants to, and agrees
with, the Sales Agent that as of each Applicable Time (as defined in Section 22(a)):
(a) Compliance with
Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration Statement and
any Rule 462(b) Registration Statement have been declared effective by the Commission under the Securities Act. As of each Applicable
Time other than the date of this Agreement, the Company has not received from the Commission any notice pursuant to Rule 401(g)(1)
under the Securities Act objecting to the use of the shelf registration statement form. At the time of the initial filing of the
Registration Statement, the Company paid (or will pay) the required Commission filing fees relating to the Placement Shares in
accordance with Rules 456(a) and 457(o) under the Securities Act. The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental information related to the Registration Statement and the Prospectus.
No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect
and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated
or threatened by the Commission. At the time of (i) the initial filing of the Registration Statement with the Commission and (ii)
the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form F-3 under the Securities Act, including compliance with General
Instructions I.A and I.B.5. of Form F-3, if and for so long as applicable. The Registration Statement and the offer and sale of
the Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material
respects with said Rule. In the section entitled “Plan of Distribution” in the ATM Prospectus, the Company has named
A.G.P./Alliance Global Partners as an agent that the Company has engaged in connection with the transactions contemplated by this
Agreement. The Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(b) No Misstatement
or Omission. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective,
complied or will comply in all material respects with the Securities Act. The Prospectus, and any amendment or supplement thereto,
on the date of such Prospectus or amendment or supplement, complied or will comply in all material respects with the Securities
Act. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, did not and
will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, did not and, as of each
Point of Sale and each Settlement Date, will not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto,
made in reliance upon and in conformity with information relating to the Sales Agent furnished to the Company in writing by the
Sales Agent expressly for use therein. “Point of Sale” means, for a Placement, the time at which an acquiror
of Placement Shares entered into a contract, binding upon such acquiror, to acquire such Placement Shares.
(c) Offering Materials
Furnished to the Sales Agent. Copies of the Registration Statement, the Prospectus, and all amendments or supplements thereto
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement,
have been delivered, or are publicly available through EDGAR, to the Sales Agent. Each Prospectus delivered to the Sales Agent
for use in connection with the sale of the Placement Shares pursuant to this Agreement will be identical to the version of such
Prospectus filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
(d) Distribution of
Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion of the Sales
Agent’s distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement
Shares other than the Prospectus or the Registration Statement.
(e) The Sales Agreement.
This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal, and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Company
has full corporate power and authority to enter into this Agreement and to authorize, issue and sell the Placement Shares as contemplated
by this Agreement. This Agreement conforms in all material respects to the descriptions thereof in the Registration Statement and
the Prospectus.
(f) Authorization
of the Placement Shares. The Placement Shares, when issued and paid for as contemplated herein, will be validly issued, fully
paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration
or similar rights, and will conform to the description of the Ordinary Shares contained in the Registration Statement and the Prospectus.
(g) No Applicable
Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity or
debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement,
except for such rights as have been duly waived. No person has the right to act as an underwriter or as a financial advisor to
the Company in connection with the offer and sale of the Placement Shares hereunder, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
(h) No Material Adverse
Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change in the business, properties, prospects, operations, condition
(financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole (any such change is called
a “Material Adverse Change”), or any development involving a prospective material adverse change, which,
individually or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Change; (ii) the Company
and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business;
(iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for regular quarterly
dividends publicly announced by the Company or dividends paid to the Company or other subsidiaries, by any of its subsidiaries
on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock;
(iv) no officer or director of the Company has resigned from any position with the Company; and (v) there has not been any Material
Adverse Change in the Company’s long-term debt.
(i) Independent Accountants.
To the knowledge of the Company, each of Friedman LLP, who issued audit reports for the Company’s financial statement for
the fiscal year ended December 31, 2019 and December 31, 2018, and BF Borgers CPA PC, the Company’s current independent auditor,
is an independent registered public accounting firm as required by the Securities Act and the Public Company Accounting Oversight
Board.
(j) Financial Statements.
The financial statements incorporated by reference in the Registration Statement and in the Prospectus, together with the related
notes and schedules, comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act,
and fairly present the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and
the results of their operations and cash flows for the periods therein specified. Such financial statements and supporting schedules
have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. No other financial statements, pro forma financial information or schedules are required
under the Securities Act or the Exchange Act to be included in or incorporated by reference in the Registration Statement or the
Prospectus.
(k) Forward-Looking
Statements. The Company had a reasonable basis for, and made in good faith, each “forward-looking statement” (within
the meaning of Section 27A of the Securities Act or Section 21E of the Exchange Act) contained or incorporated by reference in
the Registration Statement or the Prospectus.
(l) Statistical and
Marketing-Related Data. All statistical or market-related data included or incorporated by reference in the Registration Statement
or the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate, and, to
the Company’s knowledge, the Company has obtained the written consent to the use of such data from such sources to the extent
required.
(m) XBRL. The
interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(n) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company is a exempt company duly formed and validly existing under
the laws of the Cayman Islands and in good standing under such laws. The Company has requisite corporate power to carry on its
business as described in the Prospectus. The Company is duly qualified to transact business and is in good standing in all jurisdictions
in which the conduct of its business requires such qualification; except where the failure to be so qualified or to be in good
standing would not result in a Material Adverse Change. The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 20-F
for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed as an exhibit pursuant
Form 20-F, and (ii) as disclosed in the Registration Statement and the Prospectus. Each subsidiary is a corporation or limited
liability company duly incorporated or formed and validly existing under the laws of the jurisdiction of its incorporation or formation
and is in good standing under such laws. Each of the subsidiaries has requisite corporate power to carry on its business as described
in the Prospectus. Each of the subsidiaries is duly qualified to transact business and is in good standing in all jurisdictions
in which the conduct of its business requires such qualification; except where the failure to be so qualified or to be in good
standing would not result in a Material Adverse Change.
(o) Capital Stock
Matters. The Company has an authorized capitalization as set forth in the Registration Statement and the Prospectus. The form
of certificates for the Ordinary Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation.
All of the issued and outstanding Ordinary Shares of the Company issued prior to the transactions contemplated by this Agreement are
duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all applicable securities
laws, and conform to the description thereof in the Registration Statement and the Prospectus. None of the outstanding Ordinary
Shares of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of the Company. All of the issued Ordinary Shares of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and nonassessable and, except as set forth in the Registration Statement and the
Prospectus, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims. Except
for the issuances of options or restricted shares pursuant to the Company’s incentive plans or as otherwise set forth in
the Registration Statement and the Prospectus, since the respective dates as of which information is provided in the Registration
Statement or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the
Company.
(p) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The Company’s execution, delivery and performance
of this Agreement and consummation of the transactions contemplated hereby or by the Registration Statement and the Prospectus
(including the issuance and sale of the Placement Shares and the use of the proceeds from the sale of the Placement Shares as described
in the Prospectus under the caption “Use of Proceeds”) will not (A) result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is
subject, or by which any property or asset of the Company or any subsidiary is bound or affected, (B) conflict with, result in
any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time
or both) (a “Default Acceleration Event”) of, any agreement, lease, credit facility, debt, note, bond,
mortgage, indenture or other instrument (“Contract”) or obligation or other understanding to which the
Company or any subsidiary is a party or by which any property or asset of the Company or any subsidiary is bound or affected, except
to the extent that such conflict, default, or Default Acceleration Event is not reasonably likely to result in a Material Adverse
Change, or (C) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s
certificate of incorporation or bylaws. Except as set forth in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries is in violation, breach or default under its Certificate of Incorporation, by-laws or other equivalent
organizational or governing documents. Neither the Company nor any its subsidiaries nor, to its knowledge, any other party is in
violation, breach or default of any Contract that has resulted in or could reasonably be expected to result in a Material Adverse
Change. Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative
or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the performance
of the Company of the transactions herein contemplated has been obtained or made and is in full force and effect, except (i) with
respect to any Applicable Time at which the Sales Agent would not be able to rely on Rule 5110(h)(1)(C) of the Financial Industry
Regulatory Authority, Inc. (“FINRA”), such additional steps as may be required by FINRA, (ii) filings
with the Commission required under the Securities Act or the Exchange Act, or filings with the Exchange pursuant to the rules and
regulations of the Exchange, in each case that are contemplated by this Agreement to be made after the date of this Agreement,
and (iii) such additional steps as may be necessary to qualify the Ordinary Shares for sale by the Sales Agent under state securities
or Blue Sky laws.
(q) No Material Actions
or Proceedings. Except as set forth in the Registration Statement and the Prospectus, there is not pending or, to the knowledge
of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is the subject before or by any court or governmental agency,
authority or body, or any arbitrator or mediator.
(r) Labor Disputes.
There is (A) no unfair labor practice complaint pending against the Company, or any of its subsidiaries, nor to the Company’s
knowledge, threatened against it or any of its subsidiaries, before the National Labor Relations Board, any state or local labor
relation board or any foreign labor relations board, and no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its subsidiaries, or, to the Company’s knowledge, threatened
against it and (B) no labor disturbance by the employees of the Company or any of its subsidiaries exists or, to the Company’s
knowledge, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its
or its subsidiaries, principal suppliers, manufacturers, customers or contractors, that could reasonably be expected, singularly
or in the aggregate, to have a Material Adverse Change. The Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate employment with the Company or any such subsidiary.
(s) All Necessary
Permits, etc. Except as set forth in the Registration Statement and the Prospectus, the Company and each of its subsidiaries
holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates
and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for
the conduct of its business, and all such Permits are in full force and effect.
(t) Tax Law Compliance.
Other than as disclosed in the Registration Statement Package and the Prospectus or matters that would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse, each of the Company and its subsidiaries has (a)
filed all foreign, federal, state and local tax returns (as hereinafter defined) required to be filed with taxing authorities prior
to the date hereof or has duly obtained extensions of time for the filing thereof and (b) paid all taxes (as hereinafter defined)
shown as due and payable on such returns that were filed and has paid all taxes imposed on or assessed against the Company or such
respective subsidiary. The provisions for taxes payable, if any, shown on the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus are sufficient for all accrued and unpaid taxes, whether or not disputed,
and for all periods to and including the dates of such consolidated financial statements. Other than as disclosed in the Registration
Statement and the Prospectus, no issues have been raised (and are currently pending) by any taxing authority in connection with
any of the returns or taxes asserted as due from the Company or its subsidiaries, and no waivers of statutes of limitation with
respect to the returns or collection of taxes have been given by or requested from the Company or its subsidiaries. There are no
tax liens against the assets, properties or business of the Company or any of its subsidiaries. The term “taxes”
mean all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatever, together
with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “returns”
means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(u) Company Not an
“Investment Company”. The Company is not, and will not be, either after receipt of payment for the Placement Shares
or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement
or the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(v) Insurance.
The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses
in similar industries, and all such insurance is in full force and effect. Neither the Company nor any of its subsidiaries has
reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii)
to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.
(w) No Price Stabilization
or Manipulation. Neither the Company nor any of its subsidiaries has taken, directly or indirectly (without giving any effect
to the activities of the Agent), any action designed to or that might cause or result in stabilization or manipulation of the price
of the Ordinary Shares or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act
(“Regulation M”)) with respect to the Ordinary Shares, whether to facilitate the sale or resale of the
Placement Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(x) Related Party
Transactions. There are no business relationships or related party transactions involving the Company, any of its subsidiaries,
or any other person required to be described in the Registration Statement and the Prospectus that have not been described as
required pursuant to the Securities Act.
(y) Exchange Act Compliance.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus or any amendment
or supplement thereto, at the time they were or hereafter are filed with the Commission under the Exchange Act, complied and will
comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information in
the Prospectus, at each Point of Sale and each Settlement Date, will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(z) Conformity of
Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the
requirements of the Securities Act on the date of first use, and the Company has complied or will comply with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares, did not, does
not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified.
The Company has not made any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus without
the prior written consent of the Sales Agent. The Company has retained in accordance with the Securities Act all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Securities Act.
(aa) Compliance with
Environmental Laws. The Company and its subsidiaries are in compliance with all foreign, federal, state and local rules, laws
and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of
health and safety or the environment which are applicable to their businesses (“Environmental Laws”),
except where the failure to comply has not had and would not reasonably be expected to have, singularly or in the aggregate, a
Material Adverse Change. There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission,
or other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any
of its subsidiaries (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company or any of its
subsidiaries is or may otherwise be liable) upon any of the property now or previously owned or leased by the Company or any of
its subsidiaries, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree
or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation or liability which has not had and would not reasonably
be expected to have, singularly or in the aggregate, a Material Adverse Change; and there has been no disposal, discharge, emission
or other release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes
or other hazardous substances with respect to which the Company or any of its subsidiaries has knowledge. The Company and its subsidiaries
have reviewed the effect of Environmental Laws on their business and assets, in the course of which they identified and evaluated
associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or governmental permits issued thereunder, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not have, singularly or in the aggregate, a Material Adverse Change.
(bb) Intellectual
Property. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in
a Material Adverse Change, the Company and each of its subsidiaries own or possess or have valid rights to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets and similar rights (“Intellectual Property Rights”) necessary for the conduct
of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement and
the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries necessary for the conduct
of their business as currently carried on and as described in the Registration Statement and the Prospectus will involve or give
rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others, except where such action,
use, license or fee is not reasonably likely to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries
have received any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others.
Except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the
knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property
Rights owned by the Company or any of its subsidiaries; (B) there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others challenging the rights of the Company or any of its subsidiaries in or to any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim, that
would, individually or in the aggregate, together with any other claims in this Section 6(bb), reasonably be expected to
result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company or any of its subsidiaries and,
to the knowledge of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of
competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights,
and the Company is unaware of any facts which would form a reasonable basis for any such claim that would, individually or in the
aggregate, together with any other claims in this Section 6(bb), reasonably be expected to result in a Material Adverse
Change; (D) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that
the Company or any of its subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights or other
proprietary rights of others, neither the Company nor any of its subsidiaries has received any written notice of such claim and
the Company is unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in
the aggregate, together with any other claims in this Section 6(bb), reasonably be expected to result in a Material Adverse
Change; and (E) except as disclosed in the Registration Statement and the Prospectus, to the Company’s knowledge, no employee
of the Company or any of its subsidiaries is in or has ever been in violation in any material respect of any term of any employment
contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company or any of its subsidiaries, or actions undertaken by the employee while employed with the Company or
any of its subsidiaries and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change.
To the Company’s knowledge, all material technical information developed by and belonging to the Company or any of its subsidiaries
which has not been patented has been kept confidential. Neither the Company nor any of its subsidiaries is a party to or bound
by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are
required to be set forth in the Registration Statement and the Prospectus and are not described therein. The Registration Statement
and the Prospectus contain in all material respects the same description of the matters set forth in the preceding sentence. None
of the technology employed by the Company or its subsidiaries has been obtained or is being used by the Company or any of its subsidiaries
in violation of any contractual obligation binding on the Company or any such subsidiary or, to the Company’s knowledge,
any of its or its subsidiaries’ officers, directors or employees, or otherwise in violation of the rights of any persons.
(cc) Brokers.
Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than
as contemplated by this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or the
Sales Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Placement
Shares by the Sales Agent under this Agreement.
(dd) No Outstanding
Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the Company or any of its subsidiaries to or for the benefit of any
of the officers or directors of the Company or executive officers of any of its subsidiaries to the extent such executive officers
may be deemed executive officers of the Company, or any of their respective family members, except as disclosed in the Registration
Statement, the Prospectus, and Schedule (6)(dd) attached hereto. The Company has not directly or indirectly extended or maintained
credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director
or executive officer of the Company, except as disclosed in the Registration Statement and the Prospectus.
(ee) No Reliance.
The Company has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal, tax or accounting advice in
connection with the offering and sale of the Placement Shares.
(ff) Broker-Dealer
Status. Neither the Company nor any of its related entities (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning of Article
I of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations or associations between
any member of FINRA and any of the Company’s officers, directors or 10% or greater security holders, except as set forth
in the Registration Statement.
(gg) Public Float
Calculation. At the time the Registration Statement and any Rule 462(b) Registration Statement was or will be filed with the
Commission, at the time the Registration Statement and any Rule 462(b) Registration Statement was or will be declared effective
by the Commission, and at the time the Company’s most recent Annual Report on Form 20-F was filed with the Commission, the
Company met or will meet the then applicable requirements for the use of Form F-3 under the Securities Act. As of the close of
trading on the Exchange on February 22, 2021, the aggregate market value of the outstanding voting and non-voting common equity
(as defined in Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Rule 144 of the Securities
Act, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common
control with, the Company) (the “Non-Affiliate Shares”), was approximately $172.2 million (calculated
by multiplying (x) the price at which the Ordinary Shares of the Company was last sold on the Exchange on February 22, 2021 by
(y) the number of Non-Affiliate Shares outstanding on February 22, 2021). The Company is not a shell company (as defined in Rule
405) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time
previously, has filed current Form 10 information (as defined in Instruction I.B.5. of Form F-3) with the Commission at least 12
calendar months previously reflecting its status as an entity that is not a shell company.
(hh) FINRA Matters.
All of the information provided to the Sales Agent or to counsel for the Sales Agent by the Company, its counsel, its officers
and directors and, to the Company’s knowledge, the holders of any securities (debt or equity) or options to acquire any securities
of the Company in connection with the offering of the Placement Shares is true, complete, correct and compliant with FINRA’s
rules in all material respects and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules
or NASD Conduct Rules is true, complete and correct in all material respects. Except as disclosed in the Registration Statement
and the Prospectus, there is no (i) officer or director of the Company, (ii) beneficial owner of 10% or more of any class of the
Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities that were acquired during
the 180-day period immediately preceding the date of this Agreement that is an affiliate or associated person of a FINRA member
participating in the offer, issuance and sale of the Placement Shares as contemplated by this Agreement and the Registration Statement
and the Prospectus (as determined in accordance with the rules and regulations of FINRA).
(ii) Compliance with
Orders. Neither the Company nor any of its subsidiaries is in violation of any material judgment, decree, or order of any court,
arbitrator or other governmental authority.
(jj) Compliance with
Certain Applicable Laws. The Company and each of its subsidiaries: (A) is and at all times has been in compliance with all
statutes, rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed
by the Company (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Change; (B) has not received any warning letter, untitled letter or other correspondence
or notice from any governmental authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates,
approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) possesses all material Authorizations and such Authorizations are valid and in full force and effect and are not in material
violation of any term of any such Authorizations; (D) has not received notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any governmental authority or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such governmental
authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E)
has not received notice that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify
or revoke any Authorizations and has no knowledge that any such governmental authority is considering such action; and (F) has
filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments were complete and correct on the date filed (or
were corrected or supplemented by a subsequent submission).
(kk) Sarbanes–Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section
402 related to loans and Sections 302 and 906 related to certifications..
(ll) Disclosure Controls
And Procedures. Except as set forth in the Registration Statement and the Prospectus, the Company and its subsidiaries maintain
systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange
Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by references in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and are prepared in accordance
with the Commission’s rules and guidelines applicable thereto. Since the date of the latest audited financial statements
included in the Registration Statement and the Prospectus, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(mm) Intentionally
Omitted.
(nn) Contracts and
Agreements. The agreements and documents described in the Registration Statement and the Prospectus conform in all material
respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities
Act to be described in the Registration Statement and the Prospectus or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to
which the Company or any of its subsidiaries is a party or by which it is or may be bound or affected and (i) that is referred
to in the Registration Statement and the Prospectus, or (ii) is material to the Company’s or its subsidiaries’ business,
has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable
against the Company or any of its subsidiaries and, to the Company’s knowledge, the other parties thereto, in accordance
with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under
the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be
brought. Except as disclosed in the Registration Statement and the Prospectus, none of such agreements or instruments has been
assigned by the Company or its subsidiaries, and neither the Company, its subsidiaries nor, to the Company’s knowledge, any
other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time
or the giving of notice, or both, would constitute a default thereunder. To the best of the Company’s knowledge, performance
by the Company or any of its subsidiaries of the material provisions of such agreements or instruments will not result in a violation
of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign,
having jurisdiction over the Company, its subsidiaries or any of their assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations.
(oo) Title to Properties.
Except as set forth in the Registration Statement and the Prospectus, the Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all items of real or personal property which are material
to the business of the Company, in each case free and clear of all liens, encumbrances, security interests, claims and defects
that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to
the business of the Company, and under which the Company or any of its subsidiaries hold properties described in the Registration
Statement and the Prospectus, are in full force and effect, and neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or any of its subsidiaries
to the continued possession of the leased or subleased premises under any such lease or sublease, which would result in a Material
Adverse Change.
(pp) No Unlawful
Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly, to any federal
or local official or candidate for, any federal or state office in the United States or foreign offices by the Company, any of
its subsidiaries or any of their officers or directors, or, to the knowledge of the Company, by any of its employees or agents
or any other person in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any of its subsidiaries, except for such payments or inducements as were
lawful under applicable laws, rules and regulations. Neither the Company, any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its
subsidiaries, (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any direct or indirect unlawful payment to any government official or employee from corporate
funds; or (iii) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment in connection with
the business of the Company.
(qq) Foreign Corrupt
Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries, is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (collectively, the “FCPA”), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company and its subsidiaries
have conducted their respective businesses in compliance with the FCPA and have instituted and maintains policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(rr) Money Laundering
Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(ss) OFAC. None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or person acting on behalf of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to
any U.S. sanctions administered by OFAC.
(tt) Exchange Listing.
The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Exchange under
the trading symbol “PBTS”. Except as disclosed in the Registration Statement and the Prospectus, there is no action
pending by the Company or, to the Company’s knowledge, the Exchange to delist the Ordinary Shares from the Exchange, nor
has the Company received any notification that the Exchange is contemplating terminating such listing. The Company has no intention
to delist the Ordinary Shares from the Exchange or to deregister the Ordinary Shares under the Exchange Act, in either case, at
any time during the period commencing on the date of this Agreement through and including the 90th calendar day after the termination
of this Agreement. The Placement Shares have been approved for listing on the Exchange. The issuance and sale of the Placement
Shares under this Agreement does not contravene the rules and regulations of the Exchange.
(uu) Margin Rules.
The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal
Reserve System (the “Federal Reserve Board”), and none of the proceeds from the issuance, sale and delivery
of the Placement Shares as contemplated by this Agreement and as described in the Registration Statement and the Prospectus will
be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which
might cause any of the Ordinary Shares to be considered a “purpose credit” within the meanings of Regulation T, U or
X of the Federal Reserve Board.
(vv) Underwriter Agreements.
The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market” or continuous
equity transaction.
(ww) Board of Directors.
The qualifications of the persons serving as board members of the Company and the overall composition of the Company’s Board
of Directors comply with the applicable requirements of the Exchange Act and the Sarbanes-Oxley Act and the listing rules of the
Exchange applicable to the Company. At least one member of the Audit Committee of the Board of Directors of the Company qualifies
as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the
Exchange. In addition, at least a majority of the persons serving on the Board of Directors of the Company qualify as “independent,”
as defined under the listing rules of the Exchange.
(xx) No Integration.
Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offer
and sale of the Placement Shares hereunder to be integrated with prior offerings by the Company for purposes of the Securities
Act that would require the registration of any such securities under the Securities Act.
(yy) No Material Defaults.
Neither the Company nor any of its subsidiaries has defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Change. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing
of its last Annual Report on Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred
stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases,
which defaults, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(zz) Books and Records.
The minute books of the Company and each of its subsidiaries have been made available to the Sales Agent and counsel for the Sales
Agent, and such books (i) contain a substantially complete summary of all meetings and material actions of the board of directors
(including each board committee) and stockholders of the Company (or analogous governing bodies and interest holders, as applicable)
and each of its subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting
and action, and (ii) accurately in all material respects reflect all transactions referred to in such minutes.
(aaa) Continued Business.
No supplier, customer, distributor or sales agent of the Company or any subsidiary has notified the Company or any subsidiary that
it intends to discontinue or decrease the rate of business done with the Company or any subsidiary, except where such discontinuation
or decrease has not resulted in and could not reasonably be expected to result in a Material Adverse Change.
(bbb) Regulations.
The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state, local and all foreign
regulation on the Company’s business in the past and as currently contemplated are correct in all material respects and no
other such regulations are required to be disclosed in the Registration Statement and the Prospectus which are not so disclosed.
(ccc) Confidentiality
and Non-Competitions. To the Company’s knowledge, no director, officer, key employee or consultant of the Company or
any of its subsidiaries is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement
with any employer or prior employer that could reasonably be expected to materially affect his or her ability to be and act in
his or her respective capacity for the Company or to result in a Material Adverse Change.
(ddd) Dividend Restrictions.
Except as described in the Registration Statement and the Prospectus, no subsidiary of the
Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution
with respect to such subsidiary’s equity securities or from repaying to the Company or any other subsidiary of the Company
any amounts that may from time to time become due under any loans or advances to such subsidiary from the Company or from transferring
any property or assets to the Company or to any other subsidiary.
Any certificate signed by an officer of
the Company and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to or in connection with this Agreement
shall be deemed to be a representation and warranty by the Company to the Sales Agent as to the matters set forth therein.
The Company acknowledges that the Sales
Agent and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel
to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7. Covenants
of the Company. The Company covenants and agrees with the Sales Agent that:
(a) Registration Statement
Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares is
required to be delivered by the Sales Agent under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), (i) the Company will notify the Sales Agent promptly of the
time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed
with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request
by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; (ii)
the Company will prepare and file with the Commission, promptly upon the Sales Agent’s reasonable request, any amendments
or supplements to the Registration Statement or Prospectus that, in the Sales Agent’s reasonable opinion, may be necessary
or advisable in connection with the distribution of the Placement Shares by the Sales Agent (provided, however, that
the failure of the Sales Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or
affect the Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement, and provided,
further, that the only remedy the Sales Agent shall have with respect to the failure to make such filing shall be to cease
making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or
supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, relating to the Placement
Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to the Sales Agent within a
reasonable period of time before the filing and the Sales Agent has not reasonably objected thereto (provided, however,
that the failure of the Sales Agent to make such objection shall not relieve the Company of any obligation or liability hereunder,
or affect the Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement, and
provided, further, that the only remedy the Sales Agent shall have with respect to the failure by the Company to
obtain such consent shall be to cease making sales under this Agreement); (iv) the Company will furnish to the Sales Agent at the
time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration
Statement or Prospectus, except for those documents available via EDGAR; and (v) the Company will cause each amendment or supplement
to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act) or, in the
case of any documents incorporated by reference, to be filed with the Commission as required pursuant to the Exchange Act, within
the time period prescribed.
(b) Notice of Commission
Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains knowledge thereof, of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any notice objecting
to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification of the Placement
Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose or any examination
pursuant to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the offering of the Placement Shares; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Until such time as any stop order
is lifted, the Sales Agent shall cease making offers and sales under this Agreement.
(c) Delivery of Prospectus;
Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered by
the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where
such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company will comply with all
requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due
dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs
as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify the Sales Agent to suspend the offering of Placement Shares during such period and the Company
will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance; provided, however, that the Company may delay any such amendment
or supplement if, in the reasonable judgment of the Company, it is in the best interests of the Company to do so.
(d) Listing of Placement
Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by the Sales
Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts
to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws
of such jurisdictions as the Sales Agent reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery of Registration
Statement and Prospectus. The Company will furnish to the Sales Agent and its counsel (at the expense of the Company) copies
of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as the Sales Agent may from time to time reasonably request and, at the Sales Agent’s request, will also
furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided,
however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Sales Agent to
the extent such document is available on EDGAR.
(f) Earnings Statement.
The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months
after the end of the Company’s current fiscal quarter, an earnings statement of the Company and its subsidiaries (which need
not be audited) covering a 12-month period that complies with Section 11(a) and Rule 158 of the Securities Act. The terms “earnings
statement” and “make generally available to its security holders” shall have the meanings set forth in Rule 158
under the Securities Act.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement
and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, including any stock or other transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) the fees and disbursements of the counsel,
accountants and other advisors to the Company in connection with the transactions contemplated by this Agreement; (iv) the qualification
of the Placement Shares under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including
filing fees (provided, however, that any fees or disbursements of counsel for the Sales Agent in connection therewith
shall be paid by the Sales Agent except as set forth in (ix) below), (v) the printing and delivery to the Sales Agent of copies
of the Prospectus and any amendments or supplements thereto, and of this Agreement, (vi) the fees and expenses incurred in connection
with the listing or qualification of the Placement Shares for trading on the Exchange, (vii) the fees and expenses of the transfer
agent or registrar for the Ordinary Shares; (viii) filing fees and expenses, if any, of the Commission and the FINRA Corporate
Financing Department (provided, however, that any fees or disbursements of counsel for the Sales Agent in connection
therewith shall be paid by the Sales Agent except as set forth in (ix) below) and (ix) the Company shall reimburse the Sales Agent
for its out-of-pocket expenses (including but not limited to the reasonable and documented fees and expenses of counsel to the
Sales Agent) (A) in an amount not to exceed $45,000 prior to the execution of this Agreement and (B)(1) in reasonable amounts to
be mutually agreed upon by the Company and the Sales Agent from time to time after the date of this Agreement for each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable
pursuant to Section 7(m), provided with respect to this clause (B) the Sales Agent has reasonably incurred such fees and expenses
of its counsel in connection with any “bring-down” due diligence investigation of the Company in connection with such
Representation Date and (2) the Company’s reimbursement obligation shall not exceed $8,000 per fiscal year.
(h) Use of Proceeds.
The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i)
Notice of Other Sales. The Company (I) shall provide the Sales Agent notice as promptly as reasonably possible before it
offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any Ordinary Shares (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Ordinary Shares,
or warrants or any rights to purchase or acquire Ordinary Shares, during the period beginning on the fifth (5th)
Trading Day immediately prior to the date on which any Placement Notice is delivered to the Sales Agent hereunder and ending on
the fifth (5th) Trading Day immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement
Notice has been terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the fifth (5th)
Trading Day immediately following the date of such suspension or termination), and (II) will not directly or indirectly in any
other “at-the-market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell
or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire, Ordinary Shares prior to the
termination of this Agreement; provided, however, that such notice requirements or restrictions, as the case may
be, will not be required in connection with the Company’s issuance or sale of (i) Ordinary Shares, options to purchase Ordinary
Shares, other equity awards or Ordinary Shares issuable upon the exercise of options or other equity awards, pursuant to any employee
or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan of the Company whether now in effect
or hereafter implemented, (ii) Ordinary Shares issuable upon exchange, conversion or redemption of securities or the exercise of
warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR and (iii)
Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares as consideration for mergers, acquisitions,
sale or purchase of assets or other business combinations or strategic alliances occurring after the date of this Agreement which
are not issued for capital raising purposes. Notwithstanding the foregoing, the Company shall provide the Sales Agent notice at
least two (2) days prior to pursuing any private or public offerings of equity and/or other securities (including debt securities)
in one or more transactions.
(j) Change of Circumstances.
The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice or sell Placement
Shares, advise the Sales Agent promptly after it shall have received notice or obtained knowledge thereof, of any information or
fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided to the Sales
Agent pursuant to this Agreement.
(k) Due Diligence
Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent or its agents
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Sales
Agent may reasonably request.
(l) Required Filings
Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 20-F or Report on Form
6-K filed or furnished by the Company with the Commission in respect of any period in which sales of Placement Shares were made
by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement Shares sold to
or through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with
respect to such sales of Placement Shares. To the extent that the filing of a prospectus supplement with the Commission with respect
to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company agrees that, on or before
such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the
applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, with regard to the relevant
period, the amount of Placement Shares sold to or through the Sales Agent, the Net Proceeds to the Company and the compensation
payable by the Company to the Sales Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each
such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations
of such exchange or market. The Company shall afford the Sales Agent and its counsel with a reasonable opportunity to review and
comment upon, shall consult with the Sales Agent and its counsel on the form and substance of, and shall give due consideration
to all such comments from the Sales Agent or its counsel on, any such filing prior to the issuance, filing or public disclosure
thereof; provided, however, that the Company shall not be required to submit for review (A) any portion of any periodic reports
filed with the Commission under the Exchange Act other than the specific disclosure relating to any sales of Placement Shares and
(B) any disclosure contained in periodic reports filed with the Commission under the Exchange Act if it shall have previously provided
the same disclosure for review in connection with a previous filing.
(m) Representation
Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time the Company (i) files
the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating
to the Placement Shares (other than (A) a prospectus supplement filed in accordance with Section 7(l) of this Agreement
or (B) a supplement or amendment that relates to an offering of securities other than the Placement Shares) by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or
the Prospectus relating to the Placement Shares; (ii) files an annual report on Form 20-F under the Exchange Act (including any
Form 20-F/A containing amended financial information or a material amendment to the previously filed Form 20-F); (iii) files a
Form 6-K under the Exchange Act containing financial information that is incorporated by reference into the Registration Statement
and the Prospectus; or (iv) files or furnishes a report on Form 6-K containing amended financial information (other than an earnings
release) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall
be a “Representation Date”), the Company shall furnish the Sales Agent within three (3) Trading Days
after each Representation Date with a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide
a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement
Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided,
however, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form
20-F. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide the Sales Agent with a certificate under this Section 7(m), then
before the Company delivers the Placement Notice or the Sales Agent sells any Placement Shares, the Company shall provide the Sales
Agent with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) Legal Opinions.
On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished to the Sales Agent
(i) the written opinion and negative assurance of Hunter Taubman Fischer and Li LLC, as counsel to the Company, or other counsel
reasonably satisfactory to the Sales Agent (“SEC Counsel”), (ii) the written opinion of Conyers Dill
& Pearman, as Cayman Islands counsel to the Company, or other counsel reasonably satisfactory to the Sales Agent (“Cayman
Counsel”), in each case substantially in the forms previously agreed between the Company and the Sales Agent. Thereafter,
within three (3) Trading Days after each Representation Date with respect to which the Company is obligated to deliver a certificate
pursuant to Section 7(m) for which no waiver is applicable pursuant to Section 7(m), and not more than once per calendar
quarter, the Company shall cause to be furnished to the Sales Agent the written opinions and negative assurance of SEC Counsel
and the written opinions of Cayman Counsel substantially in the forms previously agreed between the Company and the Sales Agent,
modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided,
however, that if SEC Counsel has previously furnished to the Sales Agent such written opinions and negative assurance of
such counsel, and if Cayman Counsel has previously furnished to the Sales Agent such written opinions of such counsel, in each
case substantially in the forms previously agreed between the Company and the Sales Agent, then SEC Counsel and Cayman Counsel
may, in respect of any future Representation Date, furnish the Sales Agent with a letter signed by such counsel (each, a “Reliance
Letter”) in lieu of such opinions and negative assurance of such counsel (as applicable) to the effect that the Sales
Agent may rely on the prior opinions and negative assurance of such counsel (as applicable) delivered pursuant to this Section
7(n) to the same extent as if it were dated the date of such Reliance Letter (except that statements in such prior opinions
and negative assurance (as applicable) shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such Reliance Letter).
(o) Comfort Letter.
On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days after each subsequent Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable
pursuant to Section 7(m), other than a Representation Date under Section 7(m)(iii) or Section 7(m)(iv) unless with
respect to a Representation Date under Section 7(m)(iv) the Sales Agent reasonably requests delivery thereof, the Company
shall cause its independent accountants (or its prior independent accountants to the extent such independent accountants have audited
any of the financial statements in the Prospectus) to furnish the Sales Agent letters (the “Comfort Letters”),
dated the date that the Comfort Letter is delivered, in form and substance satisfactory to the Sales Agent, (i) confirming that
they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the rules
and regulations of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to
the Sales Agent in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter
had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
(p) CFO Certification.
On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days after each subsequent Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable
pursuant to Section 7(m), the Company shall furnish the Sales Agent with certificates, signed on behalf of the Company by its Chief
Financial Officer (each, a “CFO Certificate”), dated the date that the CFO Certificate is delivered,
in form and substance satisfactory to the Sales Agent and its counsel, certifying as to such financial and statistical information,
forward-looking statements and other matters as the Sales Agent may reasonably request.
(q) Market Activities.
The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in violation of Regulation M, or pay
anyone any compensation for soliciting purchases of the Placement Shares other than the Sales Agent.
(r) Insurance.
The Company and its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as
is reasonable and customary for the business in which it is engaged.
(s) Investment Company
Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will be, an “investment company” within the meaning of such term under the Investment Company Act.
(t) Securities Act
and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act
and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in,
the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u) No Offer to Sell.
Other than the Prospectus and an Issuer Free Writing Prospectus approved in advance by the Company and the Sales Agent in its capacity
as principal or agent hereunder, neither the Sales Agent nor the Company (including its agents and representatives, other than
the Sales Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as
defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.
(v) Sarbanes-Oxley
Act. The Company and its subsidiaries will use their reasonable best efforts to comply with all effective applicable provisions
of the Sarbanes-Oxley Act.
(w) Transfer Agent.
The Company shall maintain, at its sole expense, a registrar and transfer agent for the Ordinary Shares.
8. Conditions
to the Sales Agent’s Obligations. The obligations of the Sales Agent hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance
by the Company of its obligations hereunder, to the completion by the Sales Agent of a due diligence review satisfactory to the
Sales Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agent in its sole discretion)
of the following additional conditions:
(a) Registration Statement
Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares contemplated
to be issued by any Placement Notice which have not yet been issued and sold pursuant to such Registration Statement.
(b) Securities Act
Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission’s close of business on the second Business Day following the date of this Agreement. All
other filings with the Commission required by Rule 424(b) or Rule 433 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by
Rule 424(b) (without reliance on Rule 424(b)(8) of the Securities Act) or Rule 433, as applicable.
(c) No Material Notices.
None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its subsidiaries of any
request for additional information from the Commission or any other federal or state governmental authority during the period of
effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements to
the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus or any
material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires
the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not
contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) No Misstatement
or Material Omission. The Sales Agent shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Agent’s reasonable opinion is
material, or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(e) Material Changes.
Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not
have been any material adverse change in the authorized Ordinary Shares of the Company or any Material Adverse Change or any development
that could reasonably be expected to result in a Material Adverse Change, or any downgrading in or withdrawal of the rating assigned
to any of the Company’s securities (other than asset backed securities) by any rating organization or a public announcement
by any rating organization that it has under surveillance or review its rating of any of the Company’s securities (other
than asset backed securities), the effect of which, in the case of any such action by a rating organization described above, in
the reasonable judgment of the Sales Agent (without relieving the Company of any obligation or liability it may otherwise have),
is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and
in the manner contemplated by this Agreement and the Prospectus.
(f) Representation
Certificate. The Sales Agent shall have received the certificate required to be delivered pursuant to Section 7(m) on
or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(g) Legal Opinion.
The Sales Agent shall have received the opinion and negative assurances of SEC Counsel and the opinion of Cayman Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances
is required pursuant to Section 7(n).
(h) Comfort Letter.
The Sales Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(i) CFO Certificate.
The Sales Agent shall have received the CFO Certificate required to be delivered pursuant to Section 7(p) on or before the
date on which delivery of such CFO Certificate is required pursuant to Section 7(p).
(j) Secretary’s
Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, certifying as to (i) the memorandum and articles of association of
the Company (as the same may be amended or restated from time to time), (ii) the resolutions of the Board of Directors of the Company
(or a committee thereof) authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement
Shares and (iii) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated
by this Agreement.
(k) No Suspension.
Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been delisted
from the Exchange.
(l) Other Materials.
On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company shall have
furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as the Sales Agent may have
reasonably requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions
hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates, letters and other documents
as the Sales Agent shall have reasonably requested.
(m) Approval for Listing.
The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of issuance, or (ii)
the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of
any Placement Notice.
(n) No Termination
Event. There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement pursuant to Section
11(a).
(o) FINRA. The
Sales Agent shall have received a letter from the Corporate Financing Department of FINRA confirming that such department has determined
to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related to the sale of the Placement
Shares pursuant to this Agreement.
9. Indemnification
and Contribution.
(a) Company Indemnification.
The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members, partners, employees and agents
of the Sales Agent, each Sales Agent Affiliate, and the directors, officers, members, shareholders, partners, employees and agents
of each Sales Agent Affiliate, if any, from and against any and all losses, claims, liabilities, expenses and damages (including,
but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all
amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted),
as and when incurred, to which the Sales Agent, or any such person, may become subject under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any Issuer
Free Writing Prospectus or in any application or other document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Ordinary Shares under the securities
laws thereof or filed with the Commission, (y) the omission or alleged omission to state in any such document a material fact required
to be stated in it or necessary to make the statements in it not misleading or (z) any breach or alleged breach by any of the indemnifying
parties of any of their respective representations, warranties and agreements contained in this Agreement; provided, however,
that this indemnity agreement shall not apply to the extent that a court of competent jurisdiction has made a finding, not subject
to appeal or modification, that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares pursuant
to this Agreement and is caused directly by an untrue statement or omission made in reliance upon and in strict conformity with
written information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly for inclusion in any
document as described in clause (x) of this Section 9(a). This indemnity agreement will be in addition to any liability
that the Company might otherwise have.
(b) The Sales Agent
Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the
Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
(each, a “Company Affiliate”) from and against any and all losses, claims, liabilities, expenses and
damages (including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with,
and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between
any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise,
or any claim asserted), as and when incurred, to which any such Company Affiliate, may become subject under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as a court of competent
jurisdiction has made a finding, not subject to appeal or modification, that such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus or any amendment or supplement thereto, or (y) the omission or alleged omission
to state in any such document a material fact required to be stated in it or necessary to make the statements in it not misleading;
provided, however, that this indemnity agreement shall apply only to the extent that such loss, claim, liability,
expense or damage is caused directly by an untrue statement or omission made in reliance upon and in strict conformity with written
information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document
as described in clause (x) of this Section 9(b).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party,
settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise
out of such claim, action or proceeding.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or the Sales Agent, the Company and the Sales Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company
from persons other than the Sales Agent, such as persons who control the Company within the meaning of the Securities Act, officers
of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) to
which the Company and the Sales Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Sales Agent on the other. The relative benefits received by the Company on the
one hand and the Sales Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds from the
sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Sales Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on
the one hand, and the Sales Agent, on the other, with respect to the statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect
to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or the Sales Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Sales Agent agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), the Sales Agent shall not be required to
contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party
to this Agreement within the meaning of the Securities Act will have the same rights to contribution as that party (and any officers,
directors, members, partners, employees or agents of the Sales Agent and each broker dealer affiliate of the Sales Agent will
have the same rights to contribution as the Sales Agent), and each officer of the Company who signed the Registration Statement
and each director of the Company will have the same rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party
in respect of which a claim for contribution may be made under this Section 9(d), will notify any such party or parties
from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution
may be sought from any other obligation it or they may have under this Section 9(d) except to the extent that the failure
to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is
sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant
to Section 9(c) hereof.
10. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of the Sales Agent, any controlling person of
the Sales Agent, or the Company (or any of their respective officers, directors, members or controlling persons), (ii) delivery
and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) The Sales Agent shall
have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse Change,
or any development that could reasonably be expected to result in a Material Adverse Change has occurred that, in the reasonable
judgment of the Sales Agent, may materially impair the ability of the Sales Agent to sell the Placement Shares hereunder, (ii)
the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion,
or letter required under Sections 7(m), 7(n), 7(o), 7(p) or 7(q), the Sales Agent’s right
to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days
from the date such delivery was required, (iii) any other condition of the Sales Agent’s obligations hereunder is not fulfilled,
or (iv) any suspension or limitation of trading in the Placement Shares or in securities generally on the Exchange shall have occurred
(including automatic halt in trading pursuant to market-decline triggers, other than those in which solely program trading is temporarily
halted), or a major disruption of securities settlements or clearing services in the United States shall have occurred, or minimum
prices for trading have been fixed on the Exchange. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section 10
(Representations and Agreements to Survive Delivery), Section 11(f), Section 16 (Applicable Law; Consent to Jurisdiction)
and Section 17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If
the Sales Agent elects to terminate this Agreement as provided in this Section 11(a), the Sales Agent shall provide the
required notice as specified in Section 12 (Notices).
(b) The Company shall
have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c) The Sales Agent shall
have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the earlier to
occur of (i) issuance and sale of all of the Placement Shares to or through the Sales Agent on the terms and subject to the conditions
set forth herein and (ii) the expiration of the Registration Statement on the third (3rd)
anniversary of the initial effective date of the Registration Statement pursuant to Rule 415(a)(5) under the Securities Act; provided
that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall
remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c) or (d) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 11(f), Section
16 and Section 17 shall remain in full force and effect.
(f) Any termination of
this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such
termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Agent or the
Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
termination shall not become effective until the close of business on such Settlement Date and such Placement Shares shall settle
in accordance with the provisions of this Agreement.
12. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified, and if sent to the Sales Agent, shall be delivered to:
A.G.P./Alliance Global Partners
590 Madison Avenue
New York, NY 10022
Attention: Tom Higgins
Email: atm@allianceg.com
with a copy (which shall not constitute
notice) to:
Schiff Hardin LLP
901 K Street, NW
Suite 700
Washington, DC 20001
Attention: Ralph V. De Martino, Esq.
Email: rdemartino@schiffhardin.com
and if to the Company, shall be delivered
to:
Powerbridge Technologies Co., Ltd.
1st Floor, Building D2, Southern Software Park
Tangjia Bay, Zhuhai, Guangdong 519080
China
Attention: Stewart Lor
Email: stewartlor@powerbridge.com
with a copy (which shall not constitute
notice) to:
Hunter Taubman Fischer & Li LLC
800 Third Avenue, Suite 2800
New York, NY 10022
Attention: Joan Wu
Email: jwu@htflawyers.com
Each party may change
such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day,
on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier
and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange
and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 12 if sent to
the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at
the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply).
Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form
(“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt
of the written request for Nonelectronic Notice.
13. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agent and their respective
successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified parties specified therein.
References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its
rights or obligations under this Agreement without the prior written consent of the other party; provided, however,
that the Sales Agent may assign its rights and obligations hereunder to an affiliate of the Sales Agent without obtaining the Company’s
consent and notify the Company of such assignment within.
14. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Ordinary Shares.
15. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) and any other writing entered into by the parties relating to this Agreement constitutes the entire agreement
and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto.
Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the
Sales Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full
force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions
herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to
the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.
16. Applicable
Law; Consent to Jurisdiction.
(a) This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the principles
of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered
mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.
(b) The Sales
Agent and the Company agree that any suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any federal or New York State court located in the City and County of New York (a “New
York Court”), and waive any objection which they may now or hereafter have to the laying of venue of any such proceeding,
and irrevocably submit to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company hereby irrevocably
designates and appoints Puglisi & Associates (the “Process Agent”) as its authorized agent upon whom process
may be served in any claim brought against the Company, it being understood that the designation and appointment of the Process
Agent as such authorized agent shall become effective immediately without any further action on the part of the Company. The Company
represents to the Sales Agent that it has notified the Process Agent of such designation and appointment and that the Process Agent
has accepted the same. The Company hereby irrevocably authorizes and directs the Process Agent to accept such service. The Company
further agrees that service of process upon the Process Agent and written notice of said service to the Company, mailed by first-class
mail and delivered to the Process Agent, shall be deemed in every respect effective service of process upon the Company in any
such claim. Nothing herein shall affect the right of the Sales Agent, its partners, directors, officers and members, any person
who controls the Sales Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or any “affiliate”
(within the meaning of Rule 405 under the Securities Act) of the Sales Agent, or the successors and assigns of all of the foregoing
persons, to serve process in any other manner permitted by law. The provisions of this Section 16 shall survive any termination
of this Agreement, in whole or in part.
17. Waiver
of Jury Trial. The Company and the Sales Agent each hereby irrevocably waives any right it may have to a trial by jury in respect
of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Sales Agent is
acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement and the process leading
to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders
(or other equity holders), creditors or employees or any other party, on the one hand, and the Sales Agent, on the other hand,
has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Sales
Agent has advised or is advising the Company on other matters, and the Sales Agent has no obligation to the Company with respect
to the transactions contemplated by this Agreement, except the obligations expressly set forth in this Agreement;
(b) the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) the Sales Agent has
not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement, and
the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) the Company has been
advised and is aware that the Sales Agent and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Sales Agent has no obligation to disclose such interests and transactions to
the Company by virtue of any fiduciary, advisory or agency relationship; and
(e) the Company waives,
to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect, in contract, tort
or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19. Use
of Information. The Sales Agent may not provide any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising it on this Agreement
unless expressly approved by the Company in writing.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission.
21. Effect
of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall not affect
the construction hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s
knowledge” or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due
inquiry.
22. Definitions.
As used in this Agreement, the following term has the meaning set forth below:
(a) “Applicable
Time” means the date of this Agreement, each Representation Date, each date on which a Placement Notice is given, each
Point of Sale, and each Settlement Date.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and the Sales Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Sales Agent.
Very
truly yours,
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POWERBRIDGE
TECHNOLOGIES CO., LTD.
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By:
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/s/
Stewart Lor
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Name:
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Stewart
Lor
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Title:
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Co-CEO,
CFO
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ACCEPTED
as of the date first-above written:
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A.G.P./ALLIANCE
GLOBAL PARTNERS
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By:
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/s/ Tom Higgins
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:
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Name
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Tom
Higgins
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Title:
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Managing
Director
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SCHEDULE 1
Form of Placement Notice
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From:
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Powerbridge Technologies Co., Ltd.
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To:
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A.G.P./Alliance Global Partners Attention: [●]
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Subject:
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Placement Notice
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Date:
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_______________, 202__
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Ladies and Gentlemen:
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement (the “Sales Agreement”) between Powerbridge
Technologies Co., Ltd., a Cayman Islands company (the “Company”), and A.G.P./Alliance Global Partners
(the “Sales Agent”), dated February 23, 2021, the Company hereby requests that the Sales Agent sell up
to _______ of the Company’s ordinary shares, par value $0.00166667 per share (the “Placement Shares”),
at a minimum market price of $________ per share, during the time period beginning [month, day, time] and ending [month, day, time]
[and with no more than ___________ Placement Shares sold in any one Trading Day].
[The Company may include
such other sale parameters as it deems appropriate.]
Capitalized terms used
and not defined herein shall have the respective meanings assigned to them in the Sales Agreement.
SCHEDULE 2
Notice Parties
Powerbridge Technologies Co., Ltd.
Kelvin Chan
kelvinchan@powerbridge.com
The Sales Agent
atm@allianceg.com
SCHEDULE 3
Compensation
The Company
shall pay to the Sales Agent in cash, upon each sale of Placement Shares through the Sales Agent pursuant to this Agreement, an
amount equal to 3.5% of the aggregate gross proceeds from each sale of Placement Shares.*
* The
foregoing rate of compensation shall not apply when the Sales Agent purchases Placement Shares on a principal basis, in which case
the Company may sell the Placement Shares to the Sales Agent as principal at a price to be mutually agreed upon by the Company
and the Sales Agent at the relevant Point of Sale pursuant to the applicable Placement Notice (it being hereby acknowledged and
agreed that the Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to the Sales
Agreement, except as otherwise agreed by the Sales Agent and the Company in writing and expressly set forth in a Placement Notice).
Exhibit 7(m)
OFFICER CERTIFICATE
The undersigned, the
duly qualified and appointed _____________________ of Powerbridge Technologies Co., Ltd., a Cayman Islands company (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement, dated
February 23, 2021 (the “Sales Agreement”), between the Company and A.G.P./Alliance Global Partners, that:
(i) the
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change,
are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof,
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such
date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and
correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; and;
(ii) the
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the
Sales Agreement at or prior to the date hereof;
(iii) as
of the date hereof, (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) the Prospectus
does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) no
event has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in
order to make the statements therein not untrue or misleading for clauses (i) and (ii) above, respectively, to be true and correct;
(iv) there
has been no Material Adverse Change since the date as of which information is given in the Prospectus, as amended or supplemented;
(v) the
Company will not be in possession of any material non-public information at the time of delivery of any Placement Notice and/or
as long as such Placement Notice is effective; and
(vi) the
aggregate offering price of the Placement Shares that may be issued and sold pursuant to the Sales Agreement and the maximum number
or amount of Placement Shares that may be sold pursuant to the Sales Agreement have been duly authorized by the Company’s
board of directors or a duly authorized committee thereof.
Terms used herein and not defined herein
have the meanings ascribed to them in the Sales Agreement.
29
Exhibit 4.5
POWERBRIDGE TECHNOLOGIES CO., LTD.
(the “Issuer”)
AND
[TRUSTEE]
(the “Trustee”)
INDENTURE
Dated as of [●], 20[●]
Senior Debt Securities
TABLE
OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS
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1
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Section 1.01
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Definitions of Terms
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1
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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5
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Section 2.01
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Designation and Terms of Securities
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5
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Section 2.02
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Form of Securities and Trustee’s Certificate
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7
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Section 2.03
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Denominations: Provisions for Payment
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7
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Section 2.04
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Execution and Authentication
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9
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Section 2.05
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Registration of Transfer and Exchange
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10
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Section 2.06
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Temporary Securities
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11
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen Securities
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11
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Section 2.08
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Cancellation
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12
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Section 2.09
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Benefits of Indenture
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12
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Section 2.10
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Authenticating Agent
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12
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Section 2.11
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Global Securities
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13
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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14
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Section 3.01
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Redemption
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14
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Section 3.02
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Notice of Redemption
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14
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Section 3.03
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Payment Upon Redemption
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15
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Section 3.04
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Sinking Fund
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16
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Section 3.05
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Satisfaction of Sinking Fund Payments with Securities
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16
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Section 3.06
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Redemption of Securities for Sinking Fund
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16
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ARTICLE 4 COVENANTS
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17
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Section 4.01
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Payment of Principal, Premium and Interest
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17
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TABLE
OF CONTENTS
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Page
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Section 4.02
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Maintenance of Office or Agency
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17
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Section 4.03
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Paying Agents
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17
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee
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19
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Section 4.05
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Compliance with Consolidation Provisions
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19
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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19
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Section 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders
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19
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Section 5.02
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Preservation Of Information; Communications With Securityholders
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19
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Section 5.03
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Reports by the Company
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20
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Section 5.04
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Reports by the Trustee
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20
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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20
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Section 6.01
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Events of Default
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20
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee
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22
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Section 6.03
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Application of Moneys or Property Collected
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24
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Section 6.04
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Limitation on Suits
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24
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver
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25
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Section 6.06
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Control by Securityholders
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25
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Section 6.07
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Undertaking to Pay Costs
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26
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ARTICLE 7 CONCERNING THE TRUSTEE
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26
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Section 7.01
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Certain Duties and Responsibilities of Trustee
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26
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Section 7.02
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Certain Rights of Trustee
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27
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance or Securities
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29
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TABLE
OF CONTENTS
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Page
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Section 7.04
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May Hold Securities
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29
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Section 7.05
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Moneys Held in Trust
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29
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Section 7.06
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Compensation and Reimbursement
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29
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Section 7.07
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Reliance on Officers’ Certificate
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30
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Section 7.08
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Disqualification; Conflicting Interests
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30
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Section 7.09
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Corporate Trustee Required; Eligibility
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30
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Section 7.10
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Resignation and Removal; Appointment of Successor
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31
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Section 7.11
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Acceptance of Appointment By Successor
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32
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Section 7.12
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Merger, Conversion, Consolidation or Succession to Business
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33
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Section 7.13
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Preferential Collection of Claims Against the Company
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34
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Section 7.14
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Notice of Default
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34
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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34
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Section 8.01
|
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Evidence of Action by Securityholders
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34
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Section 8.02
|
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Proof of Execution by Securityholders
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35
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Section 8.03
|
|
Who May be Deemed Owners
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35
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Section 8.04
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Certain Securities Owned by Company Disregarded
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35
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Section 8.05
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Actions Binding on Future Securityholders
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36
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ARTICLE 9 SUPPLEMENTAL INDENTURES
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36
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Section 9.01
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Supplemental Indentures Without the Consent of Securityholders
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36
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Section 9.02
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Supplemental Indentures With Consent of Securityholders
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38
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Section 9.03
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Effect of Supplemental Indentures
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38
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Section 9.04
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Securities Affected by Supplemental Indentures
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38
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Section 9.05
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Execution of Supplemental Indentures
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39
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TABLE
OF CONTENTS
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Page
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ARTICLE 10 SUCCESSOR ENTITY
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39
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Section 10.01
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Company May Consolidate, Etc.
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39
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Section 10.02
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Successor Entity Substituted
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40
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Section 10.03
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Evidence of Consolidation, Etc. to Trustee
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40
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ARTICLE 11 SATISFACTION AND DISCHARGE
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40
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Section 11.01
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Satisfaction and Discharge of Indenture
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40
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Section 11.02
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Discharge of Obligations
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41
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Section 11.03
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Deposited Moneys to be Held in Trust
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41
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Section 11.04
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Payment of Moneys Held by Paying Agents
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41
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Section 11.05
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Repayment to Company
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42
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ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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42
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Section 12.01
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No Recourse
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42
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ARTICLE 13 MISCELLANEOUS PROVISIONS
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43
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Section 13.01
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Effect on Successors and Assigns
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43
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Section 13.02
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Actions by Successor
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43
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Section 13.03
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Surrender of Company Powers
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43
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Section 13.04
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Notices
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43
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Section 13.05
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Governing Law
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43
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Section 13.06
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Treatment of Securities as Debt
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44
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Section 13.07
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Certificates and Opinions as to Conditions Precedent
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44
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Section 13.08
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Payments on Business Days
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44
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Section 13.09
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Conflict with Trust Indenture Act
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44
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Section 13.10
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Indenture and Securities Solely Corporate Obligations
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45
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Section 13.11
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Counterparts
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45
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Section 13.12
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Separability
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45
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Section 13.13
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Compliance Certificates
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45
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(1)
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This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
INDENTURE
INDENTURE, dated as of [●],
20[●], among Powerbridge Technologies Co., Ltd., a Cayman Islands exempt company (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”).
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary to
make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration
of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for
the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except
as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section
2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the
Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Certificate”
means a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means
Powerbridge Technologies Co., Ltd., a Cayman Islands exempt company, and, subject to the provisions of Article Ten, shall also
include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at .
“Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means
any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing
agency under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute
or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name
of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged or (b) 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 that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect
to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held
by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest
on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest Payment Date”,
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means,
with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or
any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate”
means a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company,
that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as in Article Three provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07.
“Person” means
any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality
thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president,
any vice president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the
terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time
be owned, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means
, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended.
“Voting Stock”,
as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence
of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) 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 up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto:
(1) the title
of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit
upon the aggregate principal amount of the Securities of that series that 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 that series);
(3) the date
or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to the Securities
of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the rate
or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date
or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6) the right,
if any, to extend the interest payment periods and the duration of such extension;
(7) the period
or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation,
if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous
provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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;
(9) the form
of the Securities of the series including the form of the Certificate of Authentication for such series;
(10) if other
than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable;
(11) any
and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms
which may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of
Securities of that series;
(12) whether
the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether
the Securities will be convertible into or exchangeable for ordinary shares or other securities of the Company or any other Person
and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14) if other
than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15) any
additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on
the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions
on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions
with stockholders and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries
to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios) provided for with respect to the
Securities of the series;
(16) if other
than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign
currency);
(17) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes; and
(18) any
restrictions on transfer, sale or assignment of the Securities of the series.
All Securities of any one series shall
be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and
Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and
they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions
for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect
to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company
may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company
may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of
a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of
this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities
being redeemed in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York,
and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost
or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu
of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, 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.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request
the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders
of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by
an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation
that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not
in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING
FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case
of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough
of Manhattan, the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue
and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed,
the notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so
redeemed.
In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in
the payment of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon
to the date fixed for redemption (but if the date fixed for redemption is an interest payment date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section
2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any 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 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking
Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption 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.
Section 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days 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 3.02
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 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities.
Section 4.02 Maintenance of Office or
Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York,
with respect to each such series and at such other location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii) Securities of that series may be presented as herein above
authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be given or served, such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered to the
Trustee, designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the
Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation
Provisions.
The Company will not, while any of the
Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor
of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article
Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Names and Addresses of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation Of Information;
Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide
a copy to the Trustee, after the Company files the same with the Securities and Exchange Commission, 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 Securities and Exchange
Commission may from time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any materials for which the Company has sought and received confidential treatment by the SEC. The Company shall also
comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On
or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy
of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with
each securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the Company
defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the Company
defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the Company
fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4) 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 or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court
of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company 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 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities
of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium,
if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness
and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a
series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have
become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys or Property Collected.
Any moneys or property collected by the
Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or
premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs
and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the
Trustee in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders
of a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and
its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder’s 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 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 Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of 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) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirement of this Indenture;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
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 that series; and
(iv) None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The
Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to 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;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) 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, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1),
6.01(a)(2) and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification
in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing.
The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending
itself against any claim of liability in the premises.
(b) The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officers’
Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the Trustee
shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any
such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at
least six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment
By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall 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, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice
of the Default or Event of Default within 45 days after it occurs and becomes known to the Trustee, unless such Default or Event
of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned
by Company Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this
Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent
of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes
for such purpose;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) 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 not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental
Indentures.
Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be
and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 9.04 Securities Affected by
Supplemental Indentures.
Securities of any series affected by a
supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Security holders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, will be entitled to receive and
will be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such
Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition
of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not
the survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal
of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according
to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then
in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation,
Etc. to Trustee.
The Trustee, subject to the provisions
of Section 7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, 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 at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall
survive.
Section 11.03 Deposited Moneys to be
Held in Trust.
All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.04 Payment of Moneys Held
by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if
any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company)
shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability
with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may
be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided
herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given
or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the
Company with the Trustee), as follows: 9 North West Fourth Ring Road, Yingu Mansion Ste 1708, Haidian District, Beijing F4 100190,
with a copy to Hunter Taubman Fischer & Li LLC, 1450 Broadway, 26th Floor, New York, NY 10018, Attn: Joan Wu, Esq.
Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall
be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and Opinions
as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of
redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made
on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture
Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal
of, premium, if any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any
Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder,
employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity,
either directly or through the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate
stating whether or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company’s performance under this
Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.13, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
|
POWERBRIDGE TECHNOLOGIES CO., LTD.
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By:
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Name:
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Title:
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[TRUSTEE], as Trustee
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By:
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Name:
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Title:
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CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act of 1939, as Amended
|
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Section of Indenture
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310(a)
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7.09
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310(b)
|
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7.08
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|
|
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7.10
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310(c)
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Inapplicable
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311(a)
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|
7.13
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|
311(b)
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|
7.13
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|
|
|
|
|
311(c)
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|
Inapplicable
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|
312(a)
|
|
5.01
|
|
|
|
5.02(a)
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|
312(b)
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|
5.02(c)
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|
312(c)
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|
5.02(c)
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|
313(a)
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|
5.04(a)
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|
313(b)
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|
5.04(b)
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|
313(c)
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|
5.04(a)
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|
|
|
5.04(b)
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313(d)
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|
5.04(c)
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|
314(a)
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|
5.03
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|
|
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13.12
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|
314(b)
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|
Inapplicable
|
|
314(c)
|
|
13.07(a)
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|
314(d)
|
|
Inapplicable
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|
314(e)
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|
13.07(b)
|
|
314(f)
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|
Inapplicable
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315(a)
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7.01(a)
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|
|
|
7.01(b)
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315(b)
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7.14
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315(c)
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|
7.01
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315(d)
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7.01(b)
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|
|
|
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315(e)
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|
6.07
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|
316(a)
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|
6.06
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|
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8.04
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316(b)
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6.04
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316(c)
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|
8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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(1)
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This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of
its terms or provisions.
|
47
Exhibit 4.6
POWERBRIDGE TECHNOLOGIES CO., LTD.
Issuer
AND
[TRUSTEE]
Trustee
INDENTURE
Dated as of [●], 20[●]
Subordinated Debt Securities
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS
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1
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Section 1.01
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Definitions of Terms.
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1
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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4
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Section 2.01
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Designation and Terms of Securities.
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4
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Section 2.02
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Form of Securities and Trustee’s Certificate.
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6
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Section 2.03
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Denominations: Provisions for Payment.
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6
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Section 2.04
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Execution and Authentication.
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8
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Section 2.05
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Registration of Transfer and Exchange.
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8
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Section 2.06
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Temporary Securities.
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9
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen Securities.
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10
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Section 2.08
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Cancellation.
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10
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Section 2.09
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Benefits of Indenture.
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10
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Section 2.10
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Authenticating Agent.
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11
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Section 2.11
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Global Securities.
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11
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|
|
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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12
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|
Section 3.01
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Redemption.
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12
|
|
Section 3.02
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Notice of Redemption.
|
12
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|
Section 3.03
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Payment Upon Redemption.
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13
|
|
Section 3.04
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Sinking Fund.
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14
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|
Section 3.05
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Satisfaction of Sinking Fund Payments with Securities.
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14
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|
Section 3.06
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Redemption of Securities for Sinking Fund.
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14
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ARTICLE 4 COVENANTS
|
14
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Section 4.01
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Payment of Principal, Premium and Interest.
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14
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Section 4.02
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Maintenance of Office or Agency.
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15
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|
Section 4.03
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Paying Agents.
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15
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee.
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16
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Section 4.05
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Compliance with Consolidation Provisions.
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16
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|
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
16
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Section 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders.
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16
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Section 5.02
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Preservation Of Information; Communications With Securityholders.
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16
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Section 5.03
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Reports by the Company.
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17
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Section 5.04
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Reports by the Trustee.
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17
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
17
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|
Section 6.01
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Events of Default.
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17
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee.
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19
|
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Section 6.03
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Application of Moneys or Property Collected.
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20
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Section 6.04
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Limitation on Suits.
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20
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver.
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21
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Section 6.06
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Control by Securityholders.
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21
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Section 6.07
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Undertaking to Pay Costs.
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22
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|
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ARTICLE 7 CONCERNING THE TRUSTEE
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22
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Section 7.01
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Certain Duties and Responsibilities of Trustee.
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22
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Section 7.02
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Certain Rights of Trustee.
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23
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance or Securities.
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24
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Section 7.04
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May Hold Securities.
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24
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Section 7.05
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Moneys Held in Trust.
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25
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Section 7.06
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Compensation and Reimbursement.
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25
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Section 7.07
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Reliance on Officers’ Certificate.
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25
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Section 7.08
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Disqualification; Conflicting Interests.
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25
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Section 7.09
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Corporate Trustee Required; Eligibility.
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26
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Section 7.10
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Resignation and Removal; Appointment of Successor.
|
26
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Section 7.11
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Acceptance of Appointment By Successor.
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27
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Section 7.12
|
Merger, Conversion, Consolidation or Succession to Business.
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28
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|
Section 7.13
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Preferential Collection of Claims Against the Company.
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28
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Section 7.14
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Notice of Default
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28
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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29
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Section 8.01
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Evidence of Action by Securityholders.
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29
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Section 8.02
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Proof of Execution by Securityholders.
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29
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Section 8.03
|
Who May be Deemed Owners.
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29
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Section 8.04
|
Certain Securities Owned by Company Disregarded.
|
30
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Section 8.05
|
Actions Binding on Future Securityholders.
|
30
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|
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ARTICLE 9 SUPPLEMENTAL INDENTURES
|
30
|
|
Section 9.01
|
Supplemental Indentures Without the Consent of Securityholders.
|
30
|
|
Section 9.02
|
Supplemental Indentures With Consent of Securityholders.
|
31
|
|
Section 9.03
|
Effect of Supplemental Indentures.
|
32
|
|
Section 9.04
|
Securities Affected by Supplemental Indentures.
|
32
|
|
Section 9.05
|
Execution of Supplemental Indentures.
|
32
|
|
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|
ARTICLE 10 SUCCESSOR ENTITY
|
33
|
|
Section 10.01
|
Company May Consolidate, Etc.
|
33
|
|
Section 10.02
|
Successor Entity Substituted.
|
33
|
|
Section 10.03
|
Evidence of Consolidation, Etc. to Trustee.
|
33
|
|
|
|
|
|
ARTICLE 11 SATISFACTION AND DISCHARGE
|
34
|
|
Section 11.01
|
Satisfaction and Discharge of Indenture.
|
34
|
|
Section 11.02
|
Discharge of Obligations.
|
34
|
|
Section 11.03
|
Deposited Moneys to be Held in Trust.
|
34
|
|
Section 11.04
|
Payment of Moneys Held by Paying Agents.
|
35
|
|
Section 11.05
|
Repayment to Company.
|
35
|
|
ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
|
35
|
|
Section 12.01
|
No Recourse.
|
35
|
|
|
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|
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ARTICLE 13 MISCELLANEOUS PROVISIONS
|
36
|
|
Section 13.01
|
Effect on Successors and Assigns.
|
36
|
|
Section 13.02
|
Actions by Successor.
|
36
|
|
Section 13.03
|
Surrender of Company Powers.
|
36
|
|
Section 13.04
|
Notices.
|
36
|
|
Section 13.05
|
Governing Law.
|
36
|
|
Section 13.06
|
Treatment of Securities as Debt.
|
36
|
|
Section 13.07
|
Certificates and Opinions as to Conditions Precedent.
|
36
|
|
Section 13.08
|
Payments on Business Days.
|
37
|
|
Section 13.09
|
Conflict with Trust Indenture Act.
|
37
|
|
Section 13.10
|
Indenture and Securities Solely Corporate Obligations.
|
37
|
|
Section 13.11
|
Counterparts.
|
37
|
|
Section 13.12
|
Separability.
|
38
|
|
Section 13.13
|
Compliance Certificates.
|
38
|
|
|
|
|
|
ARTICLE 14 SUBORDINATION OF SECURITIES
|
38
|
|
Section 14.01
|
Subordination Terms.
|
38
|
|
|
(1)
|
This
Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions.
|
INDENTURE
INDENTURE, dated as of [·],
20[·], among Powerbridge Technologies Co., Ltd., a Cayman Islands exempt company (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”).
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated
debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary to
make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration
of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for
the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except
as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section
2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the
Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Certificate”
means a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means
Powerbridge Technologies Co., Ltd., a Cayman Islands exempt company, and, subject to the provisions of Article Ten, shall also
include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at .
“Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means
any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing
agency under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute
or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name
of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged or (b) 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 that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect
to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held
by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest
on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest Payment Date”,
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means,
with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or
any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate”
means a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company,
that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as in Article Three provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07.
“Person” means
any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality
thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president,
any vice president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the
terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time
be owned, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means
, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.
“Voting Stock”,
as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence
of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) 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 up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto:
(1) the title of
the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon
the aggregate principal amount of the Securities of that series that 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 that series);
(3) the date or
dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to the Securities
of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the rate or
rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or
dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6) the right, if
any, to extend the interest payment periods and the duration of such extension;
(7) the period or
periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation,
if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous
provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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;
(9) the form of
the Securities of the series including the form of the Certificate of Authentication for such series;
(10) if other than
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable;
(11) any and all
other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that series
and any security for the obligations of the Company with respect to such Securities) with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which may be
required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(12) whether the
Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the
Securities will be convertible into or exchangeable for ordinary shares or other securities of the Company or any other Person
and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14) if other than
the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.01;
(15) any additional
or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s
ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create
liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions on such
Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments or
other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions
with shareholders and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries
to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios) provided for with respect to the
Securities of the series;
(16) if other than
dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and
conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal
amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal tax
purposes;
(18) any restrictions
on transfer, sale or assignment of the Securities of the series; and
(19) the subordination
terms of the Securities of the series.
All Securities of any one series shall
be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities
and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and
they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions
for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect
to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company
may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company
may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set forth in a Board
Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities and any
Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is
a Business Day.
Subject to the foregoing provisions of
this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer
and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company
shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as
provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company
shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being
redeemed in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York,
and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu
of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, 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.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request
the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities
of any series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of
any indebtedness of the Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by
an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation
that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company
shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not
in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If at any
time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the
Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case
of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough
of Manhattan, the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue
and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed,
the notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so
redeemed.
In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than
all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a
shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it
shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one
thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger
than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities
to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on
its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company
or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given
by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions
of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving
of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to
be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of
such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall
be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed
for redemption (but if the date fixed for redemption is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation
of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a
new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security
so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any 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 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking
Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption 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.
Section 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days 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 3.02
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 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York,
with respect to each such series and at such other location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii) Securities of that series may be presented as herein above
authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be given or served, such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered to the
Trustee, designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the
Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company
shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause
each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that it will
hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will
give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal
of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will,
at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that it will
perform all other duties of paying agent as set forth in this Indenture.
(b) If the Company
shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the principal
of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action
or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill
Vacancy in Office of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation
Provisions.
The Company will not, while any of the
Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor
of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article
Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar .
Section 5.02 Preservation Of Information;
Communications With Securityholders.
(a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee
may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide
a copy to the Trustee, after the Company files the same with the Securities and Exchange Commission, 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 Securities and Exchange
Commission may from time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any materials for which the Company has sought and received confidential treatment by the SEC. The Company shall also
comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On or before
July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the preceding
May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee
shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of
each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each
securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The
Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used
herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the Company
defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the Company
defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the Company
fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4) 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 or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court of competent
jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints
a Custodian of the Company 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 90 days.
(b) In each and
every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if
given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the
Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid
interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or other
act on the part of the Trustee or the holders of the Securities.
(c) At any time
after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been
so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i)
the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that
series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events
of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on)
and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.06.
No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the
Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the Trustee
shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company
covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall default
in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due
and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the
whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of
such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses
of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company
shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that
series, wherever situated.
(c) In case of
any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and
of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at
the date of institution of such proceedings and for any additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights
of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that
series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys
or Property Collected.
Any moneys or property collected by the
Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or
premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs
and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all indebtedness
of the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and interest, respectively; and
FOURTH: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto, as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies
Cumulative; Delay or Omission Not Waiver.
(a) Except as
otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or
omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default
or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the
Trustee in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders
of a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and
its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder’s 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 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 Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of
Trustee.
(a) The Trustee,
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall
be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of 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) No provision
of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the
occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(A) the duties
and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence
of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirement of this Indenture;
(ii) the Trustee
shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding 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 that series; and
(iv) None of the
provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground
for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain Rights of
Trustee.
Except as otherwise provided in Section
7.01:
(a) The Trustee
may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) Any request,
direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of
the rights and powers vested in it by this Indenture, and to 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;
(e) The Trustee
shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) 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, consent, order, approval, bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
and
(g) The Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1),
6.01(a)(2) and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification
in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The recitals
contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee
shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company
covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing.
The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations
of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officers’
Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The Trustee
or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at
any time any one of the following shall occur:
(i) the Trustee
shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the Trustee
shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor
by the Company or by any such Securityholder; or
(iii) the Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may
remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders
of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d) Any resignation
or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor
trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment
By Successor.
(a) In case of
the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of
the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall 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, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon request
of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor
trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance
of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion,
Consolidation or Succession to Business.
Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential Collection
of Claims Against the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice
of the Default or Event of Default within 45 days after it occurs and becomes known to the Trustee, unless such Default or Event
of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.02 Proof of Execution
by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and
date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership
of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed
Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding on
Future Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent
of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect,
or inconsistency herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide
for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes for such
purpose;
(d) to add to
the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any series
of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the
benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to,
delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to make any
change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to provide
for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h) to evidence
and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to comply
with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures
With Consent of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) 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 not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental
Indentures.
Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be
and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 9.04 Securities Affected
by Supplemental Indentures.
Securities of any series affected by a
supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental
Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, will be entitled to receive and
will be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such
Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition
of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not
the survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal
of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according
to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then
in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity
Substituted.
(a) In case of
any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall
be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In case of
any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained
in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the Company
where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any
part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation,
Etc. to Trustee.
The Trustee, subject to the provisions
of Section 7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, 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 at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall
survive.
Section 11.03 Deposited Moneys
to be Held in Trust.
All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if
any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company)
shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability
with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, shareholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may
be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company
Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided
herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given
or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the
Company with the Trustee), as follows: 9 North West Fourth Ring Road, Yingu Mansion Ste 1708, Haidian District, Beijing F4 100190,
with a copy to Hunter Taubman Fischer & Li LLC, 1450 Broadway, 26th Floor, New York, NY 10018, Attn: Joan Wu, Esq.
Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall
be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities
as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and
Opinions as to Conditions Precedent.
(a) Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture (other than
the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate
or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) 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; (iii) a statement that, in the opinion of such Person, he has made such examination or
investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has
been complied with.
Section 13.08 Payments on Business
Days.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of
redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made
on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust
Indenture Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Indenture and Securities
Solely Corporate Obligations.
No recourse for the payment of the principal
of, premium, if any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any
Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder,
employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity,
either directly or through the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate
stating whether or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company’s performance under this
Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.13, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal
of, premium, if any, and interest on any series of securities issued hereunder shall be subordinated to the extent set forth in
an indenture supplemental hereto relating to such Securities.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
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POWERBRIDGE TECHNOLOGIES CO., LTD.
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By:
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Name:
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Title:
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[TRUSTEE], as Trustee
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By:
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Name:
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Title:
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CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act Of 1939, as Amended
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Section of Indenture
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310(a)
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7.09
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310(b)
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7.08
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7.10
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310(c)
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Inapplicable
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311(a)
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7.13
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311(b)
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7.13
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311(c)
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Inapplicable
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312(a)
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5.01
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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5.02(c)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a)
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5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03
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13.12
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314(b)
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Inapplicable
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314(c)
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13.07(a)
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314(d)
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Inapplicable
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314(e)
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13.07(b)
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314(f)
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Inapplicable
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315(a)
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7.01(a)
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7.01(b)
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315(b)
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7.14
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315(c)
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7.01
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315(d)
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7.01(b)
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315(e)
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6.07
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316(a)
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6.06
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8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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(1)
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This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of
its terms or provisions.
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40
Exhibit 5.1
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CONYERS DILL & PEARMAN
Cricket Square, Hutchins Drive
PO Box 2681, Grand Cayman KY1-1111
Cayman Islands
T +1 345 945 3901
conyers.com
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23 February 2021
Matter No.: 710693
+1 345 814 7382
Matthew.Stocker@conyersdill.com
Powerbridge Technology Co., Ltd.
c/o the offices of Sertus Chambers
Governors Square
Suite #5-204
23 Lime Tree Bay Avenue
Grand Cayman
Cayman Islands
Dear Sirs,
Re: Powerbridge Technologies Co., Ltd. (the “Company”)
We have acted as special legal counsel
in the Cayman Islands to the Company in connection with the Company’s Registration Statement on Form F-3 filed with the Securities
and Exchange Commission in the United States (“SEC”) on 23 February 2021 (the “Registration Statement”)
relating to (i) the Company’s registration of an indeterminate number of ordinary shares (“Ordinary Shares”),
par value $0.00166667 per share, preferred shares each (the “Preferred Shares”, and together with the Ordinary
Shares, “Equity Securities”, which term includes any common shares or preference shares to be issued pursuant
to the conversion, exchange or exercise of any other Securities), debt securities (“Debt Securities”), warrants
(“Warrants”), units (“Units”) and rights (“Rights”), such as shall have
an aggregate offering price of up to $200 million, (ii) a secondary offering of up to 8,800,000 Ordinary Shares (the “Issued
Shares”) to be sold by the relevant Selling Shareholders, all as defined and described in the prospectus (the “Resale
Prospectus”) and (iii) a sales agreement prospectus covering the offer, issuance and sale by us of up to a maximum aggregate
offering price of up to $30 million of the Ordinary Shares (“ATM Shares”) that may be issued and sold from time
to time under a sales agreement with A.G.P / Alliance Global Partners (the “Sales Agreement”), forming part
of the Registration Statement (collectively, the “Registered Securities”).
For the purposes of giving this
opinion, we have examined copies of (i) the Registration Statement; and (ii) a Certificate of Good Standing (the “Certificate
of Good Standing”) issued by the Registrar of Companies in relation to the Company.
We have also reviewed the memorandum
and articles of association (the “Constitutional Documents”) of the Company and the resolutions in writing of
the directors of the Company dated 10 February 2021 (the “Resolutions”), the register of members of the Company,
and such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion
set forth below.
We have assumed (a) the genuineness
and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us
and the authenticity and completeness of the originals from which such copies were taken, (b) the accuracy and completeness of
all factual representations made in the Registration Statement and other documents reviewed by us, (c) that the resolutions contained
in the Resolutions were passed by unanimous written resolutions of the directors of the Company, remain in full force and effect
and have not been and will not be rescinded or amended, (d) that there is no provision of the law of any jurisdiction, other than
the Cayman Islands, which would have any implication in relation to the opinions expressed herein, (e) that any Ordinary Shares
shall have been issued by the Company against payment in full, which shall be equal to at least the par value thereof, and shall
have been duly registered in the Company’s register of members, (f) that the Company will have sufficient authorised capital
to effect the issue of any of the Equity Securities and the ATM Shares at the time of issuance, whether as a principal issue or
on the conversion, exchange or exercise of any Securities, (g) that the form and terms of any and all Registered Securities (including
without limitation, the designation, powers, preferences, rights, qualifications, limitations and restrictions of preference shares)
or other securities (or other obligations, rights, currencies, commodities or other subject matter) comprising the same or subject
thereto (in the case of the Warrants and Units), the issuance and sale thereof by the Company, and the Company’s incurrence
and performance of its obligations thereunder or in respect thereof (including, without limitation, its obligations under any related
agreement, indenture or supplement thereto) in accordance with the terms thereof will not violate the Constitutional Documents
nor any applicable law, regulation, order or decree in the Cayman Islands, (h) that all necessary corporate action will be taken
to authorise and approve any issuance of Registered Securities (including, if Preference Shares are to be issued, all necessary
corporate action to establish one or more series of Preference Shares and fix the designation, powers, preferences, rights, qualifications,
limitations and restrictions thereof), the terms of the offering thereof and related matters, and that the applicable definitive
purchase, underwriting or similar agreement and, if Debt Securities are to be issued, the applicable indenture and any applicable
supplements thereto, will be duly approved, executed and delivered by or on behalf of the Company and all other parties thereto,
(i) that the applicable purchase, underwriting or similar agreement, any Debt Security, any indenture and any supplement thereto
and any other agreement or other document relating to any Registered Security will be valid and binding in accordance with its
terms pursuant to its governing law, (j) that the issuance and sale of and payment for the Registered Securities will be in accordance
with the applicable purchase, underwriting or similar agreement duly approved in accordance with the Constitutional Documents,
the Registration Statement (including the Prospectus set forth therein and any applicable supplement thereto) and, if Debt Securities
are to be issued, the applicable indenture and any applicable supplements thereto, (k) that, upon the issue of any Equity Securities
and the ATM Shares, the Company will receive consideration for the full issue price thereof which shall be equal to at least the
par value thereof, (l) the capacity, power and authority of all parties other than the Company to enter into and perform their
obligations under any and all documents entered into by such parties in connection with the issuance of the Relevant Securities,
and the due execution and delivery thereof by each party thereto. (m) the effectiveness under the laws of the United States of
America of the Registration Statement and that the Registration Statement will be duly filed with and declared effective by the
Commission; and (n) that the Prospectus contained in the Registration Statement, when declared effective by the Commission will
be in substantially the same form as that examined by us for purposes of this opinion.
The term “enforceable”
as used in this opinion means that an obligation is of a type which the courts of the Cayman Islands enforce. It does not mean
that those obligations will be enforced in all circumstances. In particular, the obligations of the Company in connection with
any Registered Security and any indenture or other agreement or document relating thereto:
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(a)
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will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation,
possessory liens, rights of set off, reorganisation, amalgamation, merger, consolidation, moratorium, bribery, corruption, money
laundering, terrorist financing, proliferation financing or any other laws or legal procedures, whether of a similar nature or
otherwise, generally affecting the rights of creditors as well as applicable international sanctions;
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(b)
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will be subject to statutory limitation of the time within which proceedings may be brought;
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(c)
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will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies,
may not be available;
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(d)
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may not be given effect to by a Cayman
Islands court if and to the extent they constitute the payment of an amount which is in the nature of a penalty; and
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(e)
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may not be given effect by a Cayman Islands
court to the extent that they are to be performed in a jurisdiction outside the Cayman Islands and such performance would be illegal
under the laws of that jurisdiction. Notwithstanding any contractual submission to the exclusive or non-exclusive jurisdiction
of specific courts, a Cayman Islands court has inherent discretion to stay or allow proceedings in the Cayman Islands against the
Company if there are other proceedings simultaneously underway against the Company in another jurisdiction.
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We have made no investigation
of and express no opinion in relation to the laws of any jurisdiction other than the Cayman Islands. This opinion is to be governed
by and construed in accordance with the laws of the Cayman Islands and is limited to and is given on the basis of the current law
and practice in the Cayman Islands. This opinion is issued solely for the purposes of the filing of the Registration Statement
and the offering of the Registered Securities by the Company and is not to be relied upon in respect of any other matter.
On the basis of and subject to
the foregoing, we are of the opinion that:
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1.
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The Company is duly incorporated and existing under the laws of the Cayman
Islands and, based on the Certificate of Good Standing, is in good standing. Pursuant to the Act, a company is deemed to be in
good standing if all fees and penalties under the Companies Act of the Cayman Islands (the “Act”) have been
paid and the Registrar of Companies has no knowledge that the Company is in default under the Act.
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2.
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When issued in accordance with the terms set out in the Registration Statement,
the Equity Securities and ATM Shares will be validly issued, fully paid and non-assessable (which term means when used herein that
no further sums are required to be paid by the holders thereof in connection with the issue of such shares).
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3.
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The Issued Shares are validly issued, fully paid and non-assessable (which
term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof).
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4.
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Upon the due issuance of: (a) Debt Securities of any series; (b) Warrants;
(c) Rights; and/or (d) Units, and payment of the consideration therefor, such Registered Securities will be validly issued and
(except in the case of any Equity Securities forming part of a Unit) will constitute valid and binding obligations of the Company
in accordance with the terms thereof.
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We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the references to our firm under the captions “Enforceability
of Civil Liabilities” and “Legal Matters” in the prospectus forming a part of the Registration Statement. In
giving this consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or that
we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations
of the Commission promulgated thereunder.
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Yours faithfully,
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/s/ Conyers Dill & Pearman
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Conyers Dill & Pearman
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Page 4 of 4
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Powerbridge Technologies Co., Ltd.
of our report dated June 24, 2020 with respect to the consolidated financial statements of Powerbridge Technologies Co., Ltd.
and subsidiaries included in its Annual Report on Form 20-F for the fiscal year ended December 31, 2019, filed with the Securities
and Exchange Commission on June 24, 2020. We were dismissed as auditor on October 6, 2020 and, accordingly, we have not performed
any audit or review procedures with respect to any financial information appearing in such Registration Statement for the periods
after the date of our dismissal. We also consent to the reference to our Firm under the heading “Experts” in such
Prospectus.
/s/
Friedman LLP
New
York, New York
February
23, 2021
