As
filed with the Securities and Exchange Commission on May 17, 2021
Registration
No. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
MICT,
Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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27-0016420
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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28
West Grand Avenue, Suite 3,
Montvale, NJ 07645
(201) 225-0190
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Darren
Mercer
President and Chief Executive Officer
MICT, INC.
28 West Grand Avenue, Suite 3
Montvale, NJ 07645
(201) 225-0190
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Richard
I. Anslow, Esq.
Jonathan
H. Deblinger, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105-0302
(212) 370-1300
Fax:
(212) 370-7889
Approximate
date of commencement 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 a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If
an emerging growth company, 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. ☐
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 Aggregate
Offering Price per
Security
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Proposed
Maximum Aggregate
Offering Price
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Amount
of
Registration Fee
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Registrant Primary Offering
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Common Stock, par
value $0.001 per share (1)(2)(3)
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—
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—
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—
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—
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Preferred Stock,
par value $0.001 per share (1)(2)(3)
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—
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—
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—
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—
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Purchase
Contracts (1)(2)(3)(5)
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—
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—
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—
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—
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Warrants
to Purchase common stock,
Preferred Stock or other Securities (1)(2)(3)(6)
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—
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—
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—
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—
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Subscription
Rights to Purchase common stock or
Preferred Stock (1)(2)(3)
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—
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—
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—
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—
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Depositary Shares
(1)(2)(3)
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—
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—
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—
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—
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Debt
Securities (which may be senior or subordinated, convertible or non-convertible,
secured or unsecured) (1)(2)(3)
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—
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—
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—
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—
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Units (1)(2)(3)(7)
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—
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—
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—
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—
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Total
Primary Offering (1)(2)(3)(4)
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—
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—
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$
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750,000,000
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$
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81,825
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Registrant Secondary Offering
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Shares
of common stock (8)(9)
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32,936,286
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$
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1.495
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$
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49,239,747.57
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$
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5,372.06
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Total
Registration Fee
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$
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87,197.06
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1)
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Securities
registered hereunder in the Registrant’s primary offering may be sold separately, together
or as units with other securities registered hereunder.
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2)
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With
regard to the Registrant’s primary offering, the amount of each security to be registered
is not specified as to each class of securities to be registered pursuant to Form S-3 General
Instruction II.D.
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3)
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The
Registrant is registering in the Registrant’s primary offering an indeterminate aggregate
principal amount and number of securities of each identified class of securities up to a
proposed aggregate offering price of $750,000,000, which may be offered from time to time
in unspecified numbers and at indeterminate prices, and as may be issuable upon conversion,
redemption, repurchase, exchange, or exercise of any securities registered hereunder, including
under any applicable anti-dilution provisions. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be issuable with respect to the
shares being registered hereunder as a result of stock splits, stock dividends or similar
transactions
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4)
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With
regard to the Registrant’s primary offering, the registration fee is calculated in
accordance with Rule 457(o) under the Securities Act of 1933, as amended.
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5)
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Includes
purchase contracts issuable upon conversion or exchange of securities registered hereunder
to the extent any such securities are by their terms convertible into or exchangeable for
purchase contracts. Each purchase contract obligates the registrant to sell, and the holder
thereof to purchase, an indeterminate number of debt securities, shares of common stock,
shares of preferred stock or other securities registered hereunder.
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6)
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Warrants
may represent rights to purchase debt securities, common stock, preferred stock or other
securities registered hereunder.
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7)
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Each
Unit consists of any combination of two or more of the securities being registered hereby.
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8)
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Pursuant
to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”),
the shares of common stock offered hereby also include such presently indeterminate number
of shares of the registrant’s common stock as a result of stock splits, stock dividends
or similar transactions.
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9)
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The
proposed maximum offering price has been estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(c) under the Securities Act on
the average of the high and low sales price of the common stock on the Nasdaq Capital Market
on May 12, 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 this 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 two prospectuses:
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●
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a
base prospectus which covers the offering, issuance and sale by us of up to $750,000,000
of our common stock, preferred stock, purchase contracts, warrants, subscriptions rights,
depositary shares, debt securities and/or units; and
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●
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a
resale prospectus covering the resale by selling stockholders of up to 32,936,286 shares
of common stock.
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The
base prospectus immediately follows this explanatory note. The resale prospectus immediately follows the base prospectus. The cover pages
and such additional information contained in the sales agreement prospectus are set forth in the pages following the base prospectus
included herein.
The
information in this prospectus is not complete and may be changed. The selling shareholder may not sell the securities until the Registration
Statement filed with the Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not
an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED MAY 17, 2021
Prospectus
MICT,
INC.
___________________________
$750,000,000
COMMON
STOCK
PREFERRED
STOCK
PURCHASE
CONTRACTS
WARRANTS
SUBSCRIPTION
RIGHTS
DEPOSITARY
SHARES
DEBT
SECURITIES
UNITS
We
may offer and sell from time to time, in one or more series, any one of the following securities of our company, for total gross proceeds
of up to $750,000,000:
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warrants
to purchase our securities;
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subscription
rights to purchase any of the foregoing securities;
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secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness
which may be senior debt securities, senior subordinated debt securities or subordinated
debt securities, each of which may be convertible into equity securities; or
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●
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units
comprised of, or other combinations of, the foregoing securities.
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We
may offer and sell these securities separately or together, in one or more series or classes and in amounts, at prices and on terms described
in one or more offerings. We may offer securities through underwriting syndicates managed or co-managed by one or more underwriters
or dealers, through agents or directly to purchasers. The prospectus supplement for each offering of securities will describe in
detail the plan of distribution for that offering. For general information about the distribution of securities offered, please
see “Plan of Distribution” in this prospectus.
Each
time our securities are offered, we will provide a prospectus supplement containing more specific information about the particular offering
and attach it to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus.
This
prospectus may not be used to offer or sell securities without a prospectus supplement which includes a description of the method and
terms of this offering.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “MICT.” On May 10, 2021, our common stock closed at
$1.53 per share. The aggregate market value of our outstanding common stock held by non-affiliates is $109,517,334 based on 113,908,845
shares of outstanding common stock, of which 71,579,957 shares are held by non-affiliates, and a per share price of $1.53 which
was the closing sale price of our common stock as quoted on the NASDAQ Capital Market on May 10, 2021.
If
we decide to seek a listing of any preferred stock, purchase contracts, warrants, subscriptions rights, depositary shares, debt securities
or units offered by this prospectus, the related prospectus supplement will disclose the exchange or market on which the securities will
be listed, if any, or where we have made an application for listing, if any.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 5 and the risk factors in our most
recent Annual Report on Form 10-K, which is incorporated by reference herein, as well as in any other recently filed quarterly or
current reports and, if any, in the relevant prospectus supplement. We urge you to carefully read this prospectus and the
accompanying prospectus supplement, together with the documents we incorporate by reference, describing the terms of these
securities before investing.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this Prospectus is May 17, 2021.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing
a “shelf” registration process. Under this shelf registration process, we may offer and sell, either individually or in combination,
in one or more offerings, any of the securities described in this prospectus, for total gross proceeds of up to $750,000,000. This prospectus
provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will
provide a prospectus supplement to this prospectus that will contain more specific information about the terms of that offering. We may
also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or
change any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus.
We
urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized
for use in connection with a specific offering, together with the information incorporated herein by reference as described under the
heading “Incorporation of Documents by Reference,” before investing in any of the securities being offered. You should rely
only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement, along
with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering. We
have not authorized anyone to provide you with different or additional information. This prospectus is an offer to sell only the securities
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and any information we have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or
any related free writing prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled
“Where You Can Find Additional Information.”
This
prospectus contains, or incorporates by reference, trademarks, tradenames, service marks and service names of MICT, Inc. and its subsidiaries.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein may contain forward looking statements that involve risks and uncertainties.
All statements other than statements of historical fact contained in this prospectus and the documents incorporated by reference herein,
including statements regarding future events, our future financial performance, business strategy, and plans and objectives of management
for future operations, are forward-looking statements. We have attempted to identify forward-looking statements by terminology including
“anticipates,” “believes,” “can,” “continue,” “could,” “estimates,”
“expects,” “intends,” “may,” “plans,” “potential,” “predicts,”
“should,” or “will” or the negative of these terms or other comparable terminology. Although we do not make forward
looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are
only predictions and involve known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk
Factors” or elsewhere in this prospectus and the documents incorporated by reference herein, which may cause our or our industry’s
actual results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Moreover, we
operate in a highly regulated and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict
all risk factors, nor can we address the impact of all factors on our business or the extent to which any factor, or combination of factors,
may cause our actual results to differ materially from those contained in any forward-looking statements.
We
have based these forward-looking statements largely on our current expectations and projections about future events and financial trends
that we believe may affect our financial condition, results of operations, business strategy, short term and long term business operations,
and financial needs. These forward-looking statements are subject to certain risks and uncertainties that could cause our actual results
to differ materially from those reflected in the forward looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in this prospectus, and in particular, the risks discussed below and under the heading
“Risk Factors” and those discussed in other documents we file with the Securities and Exchange Commission, or SEC. The following
discussion should be read in conjunction with the financial statements for the fiscal years ended December 31, 2020 and 2019 and notes
incorporated by reference therein. We undertake no obligation to revise or publicly release the results of any revision to these forward-looking
statements, except as required by law. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances
discussed in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied
in the forward-looking statement.
You
should not place undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus. Except
as required by law, we undertake no obligation to update or revise publicly any of the forward-looking statements after the date of this
prospectus to conform our statements to actual results or changed expectations.
Any
forward-looking statement you read in this prospectus or any document incorporated by reference reflects our current views with respect
to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, operating results,
growth strategy and liquidity. You should not place undue reliance on these forward-looking statements because such statements speak
only as to the date when made. We assume no obligation to publicly update or revise these forward-looking statements for any reason,
or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new
information becomes available in the future, except as otherwise required by applicable law. You are advised, however, to consult any
further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC. You should understand
that it is not possible to predict or identify all risk factors. Consequently, you should not consider any such list to be a complete
set of all potential risks or uncertainties.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information
that you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents
incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information With
Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and the financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before making
an investment decision.
Overview
We
were formed as a Delaware corporation on January 31, 2002. On March 14, 2013, we changed our corporate name from Lapis Technologies,
Inc. to Micronet Enertec Technologies, Inc. On July 13, 2018, following the sale of our former subsidiary Enertec Systems Ltd., we changed
our name from Micronet Enertec Technologies, Inc. to MICT, Inc. Our shares have been listed for trading on The Nasdaq Capital Market
under the symbol “MICT” since April 29, 2013. Prior to July 1st 2020, MICT operated primarily through its
Israel-based majority-owned subsidiary, Micronet.
On
July 1, 2020, MICT completed its acquisition (the “Acquisition”) of GFH Intermediate Holdings Ltd. (“GFHI” or
“Intermediate”), pursuant to that certain Agreement and Plan of Merger entered into on November 7, 2019 by and between MICT,
GFHI, Global Fintech Holding Ltd. (“GFH”), a British Virgin Islands company and the sole shareholder of GFHI, and MICT Merger
Subsidiary Inc., a British Virgin Islands company and a wholly owned subsidiary of MICT (“Merger Sub”), as amended and restated
on April 15, 2020 (the “Restated Merger Agreement” and “Merger”). Intermediate is a financial technology company
with a marketplace in China and in other areas of the world and is currently in the process of building various platforms for business
opportunities in various verticals and technology segments in order to capitalize on such technology and business. Intermediate plans
to continue and advance its capabilities and its technological platforms through acquisition or license of technologies to support in
growth efforts in the different market segments as more fully described below. Accordingly, after the Merger, MICT’s includes the
business of Intermediate, its wholly-owned subsidiary, operating through its operating subsidiaries, as described herein.
Our
current business, following the completion of the Acquisition, is primarily comprised and focused on the growth and development of the
Intermediate financial technology offering and the marketplace in China. We aim and are in the process of building various platforms
for business opportunities in various verticals and technology segments in order to capitalize on such technology and business
As
a result of our Acquisition of Intermediate and the subsequent work we have undertaken with the management of Intermediate, we are positioned
to establish ourselves, through our operating subsidiaries, to serve the markets as a financial technology company with a significant
China marketplace and in other areas of the world. Intermediate has built various platforms to capitalize on business opportunities in
a range of verticals and technology segments, including:” stock trading and wealth management; oil and gas trading; and insurance
brokerage and is seeking to secure material contracts in these valuable market segments in China while developing opportunities, in order
to allow Intermediate to access to such markets. We will continue to add to the capabilities of such platforms through acquisition and/or
the license of technologies to support these efforts in the different market segments as more fully described below. By building secure,
reliable and scalable platforms with high volume processing capability, we intend to provide customized solutions that address the needs
of a highly diverse and broad client base.
We
are planning to implement our plans taking advantage of Intermediate experience and experience in local markets in China, and through
the Company’s operating subsidiaries which have begun to secure material contracts in fast growing market segments in China.
Our
current valuable opportunities have given us access to the following market segments:
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Stock
trading and wealth management
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As
set hereunder, these opportunities are supported and shall further planned to be executed and realized through our business development
efforts which as set forth herein include the acquisition of potential targets entities, business and assets (such as applicable required
licenses) in the relevant business space and segments in which we plan to operate, which allow the Company to enter the market quickly
and leverage on such existing assets in order to promote its growth strategy.
We
have launched our insurance platform operated by GFHI for the Chinese market and from that day onward, we have been generating revenues
in GFHI. While the revenues were not material in 2020, these revenues are building and we expect these revenues to grow considerably
during 2021 as this business establishes itself in the market as a reputable service available to consumers.
Intermediate
is developing an advanced technology securities trading platform capable of making available to the investors and potential customers
advanced investing tools by offering, through its operating subsidiaries, a fully digitized and mobile app-enabled brokerage service
covering several markets. Harnessing the security, reliability and volume capabilities of this platform and its management’s longstanding
commercial relationships in China, we will aim to provide investing services, including stock trading and clearing, margin financing,
market data and information, and interactive social features to retail investors through our proprietary one-stop digital platform. The
development of the platform is very advanced and is expected to be completed by the end of the second quarter of 2021.
As
a result of our acquisition of Intermediate and our subsequent acquisition on February 26, 2021 of Huapei Global Securities, Ltd. (“Huapei”),
a Hong Kong securities and investment services firm, with the completion of the acquisition we have now obtained the licenses and permits
for operating the online platform and expect to launch the online stock trading platform initially in Hong Kong. This will be after rigorous
testing to ensure scale and reliability of the systems, once this is complete we will then be in a position to notify the Hong Kong regulator
of our intended launch date of the new online trading APP.
Recent
Developments
Guang
Xi Zhong Tong transaction:
On
January 1, 2021 we have entered via Tianjin Bokefa technology co., ltd., our fully owned subsidiary, into a transaction with the shareholders
of Guang Xi Zhong Tong, a local chinses entity with business and operations in the field of broker insurance pursuant to the transaction,
we have granted to the Guang Xi Zhong Tong shareholders (the “Shareholders”) with a loan in the total amount of $6,125,000
(“Loan Amount”) which is designated to be used and granted to Guang Xi Zhong Tong as working capital. In consideration for
the loan the parties have entered into various additional agreement which include among other: (i) a pledge agreement pursuant to which
the Shareholders have pledged their shares for the benefit of Tianjin Bokefa technology co., ltd. as a security in order to secure the
Loan Amount (ii) exclusive option agreement pursuant to which Tianjin Bokefa technology co., ltd has an exclusive option to purchase
the entire shares of Guang Xi Zhong Tong from the Shareholders (“Option Agreement”) under such terms set forth in the Option
Agreement which include an exercise price not less than the Loan Amount and the right to convert the Loan Amount into the purchased shares
(iii) Entrustment Agreement and Power of Attorney Agreement pursuant to which the Shareholders irrevocably entrusted and appointed Tianjin
Bokefa as its proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of
Guangxi Zhongtong in the Shareholder’s equity interest in Guangxi Zhongtong (iv) business cooperation agreement and a master exclusive
service agreement which grants Tianjin Bokefa with rights related to the Guang Xi Zhong Tong business and operations designed to secure
repayment of the Loan Amount.
Beijing
Fucheng Lianbao Technology Co., Ltd transaction
On
February 10, 2021, the Company closed a transaction pursuant to which it acquired (via Beijing Fucheng Lianbao Technology Co., Ltd. in
which it holds 24% and engaged in a VIE structure) all of the shares of Beijing Yibao Technology Co., Ltd., and indirectly its fully
owned subsidiary Beijing Fucheng Insurance Brokerage Co., Ltd. (the “Fucheng Insurance Transaction”). Beijing Fucheng Insurance
Brokerage Co., Ltd. is a Chinese insurance brokerage agency and is a nationwide licensed entity allowing it to offer insurance brokerage
services for a broad range of insurance products. The nationwide license will allow us, via the Fucheng Insurance Transaction with flexibility
to offer and create tailor-made insurance products, to leverage directly to customers or through distribution partners and to procure
better deals with both our existing and new insurance company partners. The consummation of the Fucheng Insurance Transaction will enable
us to accelerate the onboarding of new agents throughout China onto our platforms. It also creates the opportunity to promote our business
through some of China’s biggest online portals, which will provide business-to-business-to-consumer (B2B2C) as well as business-to-consumer
(B2C) channels. In addition, the Fucheng Insurance acquisition initiates the nationwide rollout of its mobile application, which will
facilitate access to those portals’ vast customer bases, offering MICT’S full complement of insurance products. The shares
were acquired for approximately $5.7 million, and funded through MICT.
Acquisition
Agreement with Huapei Global Securities Limited
On
October 2, 2020 our indirect wholly-owned subsidiary BI Intermediate (Hong Kong) Limited (“BI Intermediate”) has entered
a strategic agreement (“Strategic Agreement”) to acquire, the entire share capital of Huapei Global Securities Limited
(“Huapei”), Hong Kong based securities and investments firm for a total purchase price of U.S.$3.0 million (“Purchase
Price”). Huapei is licensed to trade securities on leading exchanges in Hong Kong, the U.S. and China including the valuable
China A-Shares, all of which are the primary target markets for Company’s global fintech business. The Strategic Agreement provided
that the acquisition shall be consummated in two phases, an initial purchase of 9% of the share capital of Huapei and thereafter, the
remaining 91% of Huapei would be purchased by BI Intermediate upon and subject to the approval of the Hong Kong Securities and Futures
Commission (SFC), the principal regulator of Hong Kong’s securities and futures markets. On November 11, 2020, BI Intermediate
closed on its acquisition of the first 9% of its acquisition and paid 9% of the Purchase Price. Additionally, pursuant to the Strategic
Agreement upon the initial closing, BI Intermediate made a loan to Huapei in an amount equivalent to the remaining 91% of the purchase
price. Upon the closing of the remaining 91%, which remains subject to SFC approval, the loan will be cancelled, and BI Intermediate
will acquire the remaining 91% of Huapei. The loan was secured against the pledge of the 91% of the share capital of Huapei yet purchased
at such time by BI Intermediate. The obligations of Huapei, the seller of the interests of Huapei, under the loan agreement have been
guaranteed by the ultimate controller of Huapei . On February 26, 2021 we have completed the acquisition of Huapei upon the purchase
of remaining outstanding share capital (91% of the share capital) of Huapei. The acquisition was consummated following the receipt of
the approval of the SFC for the change in the substantial shareholder of Huapei. In consideration for the entire share capital of Huapei
, we paid a total Purchase Price of $2,936,000 (reflecting the net asset value of Huapei Global estimated at $2,034,000, and a premium
$902,000 (the “Consideration”). The Company is in the process of integrating its mobile app supporting platform with Huapei’s
licensed trading assets.
As
a result of our acquisition of Huapei we have now obtained the licenses and permits for operating the online platform and expect to launch
the online stock trading platform initially in Hong Kong once we have completed rigorous testing to ensure scale and reliablility of
the systems. Thereafter. we will be in a position to notify the Hong Kong regulator of our intended launch date of the new online trading
APP.
Technology
will permeate every part of our stock trading business, allowing us, as a result of our Acquisition of Intermediate, to offer a redefined
user experience built upon an agile, stable, scalable and secure platform. We aim to primarily serve the emerging affluent Chinese population,
pursuing a massive opportunity to facilitate a once-in-a-generation shift in the wealth management industry and build a digital gateway
into broader financial services. We intend to launch our stock trading business on the premise that no one should be precluded from investing
on the basis of prohibitive transaction costs or financial industry inexperience. The platform is designed to provide an elegant user
experience integrating clear and relevant market data, social collaboration and best-in-class trade execution. Over time, we intend to
continuously enhance this technology and build a comprehensive, user-oriented and cloud-based platform that is fully-licensed to conduct
securities brokerage business beginning in China and followed by other jurisdictions. We expect this to serve as a foundation from which
we can execute growth strategies and operate efficiently offering the market strong competitive products.
We
also intend to take steps to broaden the platform’s reach and promote the exchange of information through social network services.
In contrast to traditional investing platforms and other online brokers, we intend to embed social media tools to create a user-centered
network and provide connectivity to users, investors, companies, analysts, media and key opinion leaders. We expect this to foster the
free flow of information, reduce information asymmetry and support the investing decision-making process. For instance, users would be
able to exchange market views, watch live broadcasts of corporate events, and participate in investment education courses offered through
the platform. Importantly, we expect such social networking tools to serve as a powerful engagement tool. User activities would provide
us with invaluable user data which informs its product development and monetization efforts.
Offering
of Secured Convertible Debentures
On
November 2, 2020, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors
(the “Investors”) for the purpose of raising $25.0 million in gross proceeds for the Company (the “Offering”).
Pursuant to the terms of the Purchase Agreement, the Company sold in a registered direct offering, an aggregate of 10,000,000 units (each,
a “Unit”), with each Unit consisting of one share of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), and one warrant to purchase 0.8 of one share of Common Stock (each, a “Warrant”). at a purchase price of $2.50
per Unit. The Warrants are exercisable six months after the date of issuance at an exercise price of $3.12 per share and will expire
five years following the date the Warrants become exercisable. The closing of the sale of Units pursuant to the Securities Purchase
Agreement occurred on November 4, 2020. By December 31, 2020, the Company had received a total of $22.325 million in gross proceeds pursuant
to Offering and issued in the aggregate, 7,600,000 Units. The remaining gross proceeds, in the additional aggregate amount of $2.675
million, were received by the Company on March 1, 2021 and in consideration for such proceeds, the Company issued the remaining 2,400,000
units.
On
February 11, 2021, the Company announced that it has entered into a Securities Purchase Agreement (the “Purchase Agreement”)
with certain institution investors for the sale of (i) 22,471,904 shares of common stock, (ii) 22,471,904 Series A Warrants to purchase
22,471,904 shares of common stock and (iii) 11,235,952 Series B Warrants to purchase 11,235,952 shares of common stock at a combined
purchase price of $2.67 (the “Offering”). The gross proceeds to the Company from the Offering are expected to be approximately
$60,000,000 before deducting placement agent fees and other estimated Offering expenses. The Series A Warrants will be exercisable six
months after the date of issuance, have an exercise price of $2.80 per share and will expire five and one-half years from the date of
issuance. The Series B Warrants will be exercisable six months after the date of issuance, have an exercise price of $2.80 per share
and will expire three and one-half years from the date of issuance.
On
March 2, 2021, the Company entered into a Securities Purchase Agreement with certain investors for the purpose of raising approximately
$54,000,000 in gross proceeds for the Company. Pursuant to the terms of the Purchase Agreement, the Company agreed to sell, in a registered
direct offering, an aggregate of 19,285,715 shares of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), at a purchase price of $2.675 per Share and in a concurrent private placement, warrants to purchase an aggregate of 19,285,715
shares of Common Stock, at a purchase price of $0.125 per Warrant, for a combined purchase price per Share and Warrant of $2.80 (the
“Purchase Price”) which was priced at the market under Nasdaq rules. The Warrants are immediately exercisable at an exercise
price of $2.80 per share, subject to adjustment, and expire five years after the issuance date. The closing date was on March 4, 2021.
The Company received net proceeds of $48.69 million on March 4, 2021, after deducting the Placement Agent’s fees and other expenses.
Principal
Offices
Our
principal executive offices are located at 28 West Grand Avenue, Suite 3, Montvale, New Jersey, 07645, and the telephone number is (201)
225-0190. Information about us is available on our website www.mict-inc.com. The information contained on our website or that can be
accessed through our website does not constitute part of this prospectus and is not incorporated in any manner into this prospectus.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully consider
the risk factors we describe in any prospectus supplement and in any related free writing prospectus for a specific offering of securities,
as well as those incorporated by reference into this prospectus or such prospectus supplement. You should also carefully consider
other information contained and incorporated by reference in this prospectus and any applicable prospectus supplement, including our
financial statements and the related notes thereto incorporated by reference in this prospectus. The risks and uncertainties described
in the applicable prospectus supplement and our other filings with the SEC incorporated by reference herein are not the only ones we
face. Additional risks and uncertainties not presently known to us or that we currently consider immaterial may also adversely affect
us. If any of the described risks occur, our business, financial condition or results of operations could be materially harmed. In such
case, the value of our securities could decline and you may lose all or part of your investment.
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from these sales for general corporate purposes, which
includes, without limitation, investing in or acquiring companies that are synergistic with or complimentary to our technologies, and
working capital. The amounts and timing of these expenditures will depend on numerous factors, including the development of our current
business initiatives.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time to or through underwriters or dealers, through agents, or directly to one or more purchasers.
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities, including
without limitation, warrants, rights to purchase and subscriptions. In addition, the manner in which we may sell some or all of
the securities covered by this prospectus includes, without limitation, through:
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a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell
a portion of the block, as principal, in order to facilitate the transaction;
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purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; or
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ordinary
brokerage transactions and transactions in which a broker solicits purchasers.
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A
prospectus supplement or supplements with respect to each series of securities will describe the terms of the offering, including, to
the extent applicable:
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the
terms of the offering;
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the
name or names of the underwriters or agents and the amounts of securities underwritten or
purchased by each of them, if any;
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the
public offering price or purchase price of the securities or other consideration therefor,
and the proceeds to be received by us from the sale;
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any
delayed delivery requirements;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
underwriting discounts or agency fees and other items constituting underwriters’ or
agents’ compensation
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any
discounts or concessions allowed or re-allowed or paid to dealers; and
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any
securities exchange or market on which the securities may be listed.
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The
offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effected
from time to time in one or more transactions, including privately negotiated transactions, either:
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at
a fixed price or prices, which may be changed;
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in
an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities
Act of 1933, as amended, or the Securities Act;
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at
prices related to such prevailing market prices; or
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Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
Underwriters
and Agents; Direct Sales
If
underwriters are used in a sale, they will acquire the offered securities for their own account and may resell the offered securities
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. We may offer the securities to the public through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate.
Unless
the prospectus supplement states otherwise, the obligations of the underwriters to purchase the securities will be subject to the conditions
set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be obligated to purchase
all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering
price and any discounts or concessions allowed or re-allowed or paid to dealers may change from time to time. We may use underwriters
with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such
relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale
of securities, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
Dealers
We
may sell the offered securities to dealers as principals. The dealer may then resell such securities to the public either at varying
prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale.
Institutional
Purchasers
We
may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed
delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus
supplement or other offering materials, as the case may be, will provide the details of any such arrangement, including the offering
price and commissions payable on the solicitations.
We
will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial
and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification;
Other Relationships
We
may provide agents, underwriters, dealers and remarketing firms with indemnification against certain civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities.
Agents, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for,
us in the ordinary course of business. This includes commercial banking and investment banking transactions.
Market-Making;
Stabilization and Other Transactions
There
is currently no market for any of the offered securities, other than our common stock, which is quoted on the Nasdaq Capital Market.
If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending
upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter could inform
us that it intends to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market-making
could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop
for the offered securities. We have no current plans for listing of the debt securities, preferred stock, warrants or subscription
rights on any securities exchange or quotation system; any such listing with respect to any particular debt securities, preferred stock,
warrants or subscription rights will be described in the applicable prospectus supplement or other offering materials, as the case may
be.
Any
underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales in excess of the offering size,
which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities,
either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer
are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any
underwriters or agents that are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions
in our common stock on the Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business day
prior to the pricing of the offering, before the commencement of offers or sales of our common stock. Passive market makers must comply
with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below
the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits
are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail
in the open market and, if commenced, may be discontinued at any time.
Fees
and Commissions
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule
5121.
DESCRIPTION
OF SECURITIES WE MAY OFFER
General
This
prospectus describes the general terms of our capital stock. The following description is not complete and may not contain all the information
you should consider before investing in our capital stock. For a more detailed description of these securities, you should read the applicable
provisions of Delaware law and our certificate of incorporation, as amended, referred to herein as our certificate of incorporation,
and our bylaws, as amended, referred to herein as our bylaws. When we offer to sell a particular series of these securities, we will
describe the specific terms of the series in a supplement to this prospectus. Accordingly, for a description of the terms of any series
of securities, you must refer to both the prospectus supplement relating to that series and the description of the securities described
in this prospectus. To the extent the information contained in the prospectus supplement differs from this summary description, you should
rely on the information in the prospectus supplement.
The
total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 265,000,000, of which 250,000,000
shares shall be Common Stock of the par value of $0.001 per share and 15,000,000 shares shall be Preferred Stock of the par value of
$0.001 per share.
We,
directly or through agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately,
up to $750,000,000 in the aggregate of:
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warrants
to purchase our securities;
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subscription
rights to purchase our securities;
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secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness
which may be senior debt securities, senior subordinated debt securities or subordinated
debt securities, each of which may be convertible into equity securities; or
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units
comprised of, or other combinations of, the foregoing securities.
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We
may issue the debt securities exchangeable for or convertible into shares of common stock, preferred stock or other securities that may
be sold by us pursuant to this prospectus or any combination of the foregoing. The preferred stock may also be exchangeable for and/or
convertible into shares of common stock, another series of preferred stock or other securities that may be sold by us pursuant to this
prospectus or any combination of the foregoing. When a particular series of securities is offered, a supplement to this prospectus
will be delivered with this prospectus, which will set forth the terms of the offering and sale of the offered securities.
Common
Stock
As
of May 10, 2021, there were 113,908,845 shares of common stock issued and outstanding, held of record by approximately 197 stockholders.
Subject to preferential rights with respect to any outstanding preferred stock, all outstanding shares of common stock are of the same
class and have equal rights and attributes.
Dividend
Rights
Subject
to preferences that may be applicable to any then outstanding preferred stock, and further subject to any contractual limitations on
the declaration, setting aside or payment of dividends, holders of common stock are entitled to receive ratably those dividends, if any,
as may be declared from time to time by our board of directors out of legally available funds.
Voting
Rights
Holders
of the common stock are entitled to one vote per share in all matters as to which holders of common stock are entitled to vote. Holders
of not less than a majority of the outstanding shares of common stock entitled to vote at any meeting of stockholders constitute a quorum
unless otherwise required by law. Our certificate of incorporation, as amended, does not provide for cumulative voting.
Election
of Directors
Directors
hold office until the next annual meeting of our stockholders and until their successors have been duly elected and qualified. Our executive
officers are elected by and serve at the designation and appointment of the board of directors.
Liquidation
In
the event of any liquidation, dissolution or winding up of the Company, holders of the common stock have the right to receive ratably
and equally all of the assets remaining after payment of liabilities and liquidation preferences of any preferred stock then outstanding.
Redemption
The
common stock is not redeemable or convertible and does not have any sinking fund provisions.
Preemptive
Rights
Holders
of the common stock do not have preemptive rights.
Other
Rights
Our
common stock is not liable to further calls or to assessment by the registrant and for liabilities of the registrant imposed on its stockholders
under state statutes.
Right
to Amend Bylaws
The
board of directors has the power to adopt, amend or repeal the bylaws. Bylaws adopted by the board of directors may be repealed
or changed, and new bylaws made, by the stockholders, and the stockholders may prescribe that any bylaw made by them shall not be
altered, amended or repealed by the board of directors.
Change
in Control
Provisions
of Delaware law and our certificate of incorporation and bylaws could make the acquisition of our company by means of a tender offer,
proxy contest or otherwise, and the removal of incumbent officers and directors, more difficult. These provisions include:
Section
203 of the DGCL, which prohibits a merger with a 15%-or-greater stockholder, such as a party that has completed a successful tender offer,
until three years after that party became a 15%-or-greater stockholder;
The
authorization in our certificate of incorporation of undesignated preferred stock, which could be issued without stockholder approval
in a manner designed to prevent or discourage a takeover; and
Provisions
in our bylaws regarding stockholders’ rights to call a special meeting of stockholders limit such rights to stockholders holding together
at least a thirty-five percent of the shares of the Company entitled to vote at the meeting, which could make it more difficult for stockholders
to wage a proxy contest for control of our board of directors or to vote to repeal any of the anti-takeover provisions contained in our
certificate of incorporation and bylaws.
Together,
these provisions may make the removal of management more difficult and may discourage transactions that could otherwise involve payment
of a premium over prevailing market prices for our common stock.
Market,
Symbol and Transfer Agent
Our
common stock is listed for trading on the Nasdaq Capital Market under the symbol “MICT”. The transfer agent and registrar
for our common stock is Broadridge Financial Solutions, Inc.
Preferred
Stock
Our
certificate of incorporation, as amended, empowers our board of directors, to issue up to 15,000,000 shares of Preferred Stock of the
par value of $0.001 per share.. As of May10, 2021, there are no shares of Series A Convertible Preferred stock or Series B Preferred
Stock outstanding.
We
will fix the rights, preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation
relating to that series. 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 on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include any or all of the following, as required:
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the
title and stated value;
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the
number of shares we are offering;
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the
liquidation preference per share;
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the
dividend rate, period and payment date and method of calculation for dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate;
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any
contractual limitations on our ability to declare, set aside or pay any dividends;
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the
procedures for any auction and remarketing, if any;
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the
provisions for a sinking fund, if any;
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights;
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any
listing of the preferred stock on any securities exchange or market;
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion
price, or how it will be calculated, and the conversion period;
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price, or how it will be calculated, and the exchange period;
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voting
rights, if any, of the preferred stock;
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preemptive
rights, if any;
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restrictions
on transfer, sale or other assignment, if any;
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whether
interests in the preferred stock will be represented by depositary shares;
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a
discussion of any material or special United States federal income tax considerations applicable
to the preferred stock;
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights
if we liquidate, dissolve or wind up our affairs;
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any
limitations on issuance of any class or series of preferred stock ranking senior to or on
a parity with the series of preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred
stock.
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If
we issue shares of preferred stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and non-assessable.
The
Delaware General Corporation Law provides that the holders of preferred stock will have the right to vote separately as a class on any
proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights
provided for in the applicable certificate of designation.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting
power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent
a change in control of our Company or make removal of management more difficult. Additionally, the issuance of preferred stock could
have the effect of decreasing the market price of our common stock.
Purchase
Contracts
We
may issue purchase contracts, representing contracts obligating holders to purchase from us, and us to sell to the holders, a specific
or varying number of common stock, preferred stock, warrants, depositary shares, debt securities, warrants or any combination of the
above, at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders
to sell to us, a specific or varying number of common stock, preferred stock, warrants, depositary shares, debt securities, or any combination
of the above. The price of the securities and other property subject to the purchase contracts may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula set forth in the purchase contracts. The purchase contracts
may be issued separately or as a part of a unit that consists of (a) a purchase contract and (b) one or more of the other securities
that may be sold by us pursuant to this prospectus or any combination of the foregoing, which may secure the holders’ obligations
to purchase the securities under the purchase contract. The purchase contracts may require us to make periodic payments to the holders
or require the holders to make periodic payments to us. These payments may be unsecured or prefunded and may be paid on a current or
on a deferred basis. The purchase contracts may require holders to secure their obligations under the contracts in a manner specified
in the applicable prospectus supplement.
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 8-K that we file with the SEC, forms of the purchase contracts and purchase contract agreement, if any. The applicable
prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is being delivered, including,
to the extent applicable, the following:
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whether
the purchase contracts obligate the holder or us to purchase or sell, or both purchase and
sell, the securities subject to purchase under the purchase contract, and the nature and
amount of each of those securities, or the method of determining those amounts;
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whether
the purchase contracts are to be prepaid or not;
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whether
the purchase contracts are to be settled by delivery, or by reference or linkage to the value,
performance or level of the securities subject to purchase under the purchase contract;
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any
acceleration, cancellation, termination or other provisions relating to the settlement of
the purchase contracts; and
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whether
the purchase contracts will be issued in fully registered or global form.
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Warrants
MICT
currently has issued and outstanding warrants to purchase 64,814,337 shares of Common Stock at an average exercise price of $2.73 per
share.
We
may issue additional warrants to purchase our securities or other rights, including rights to receive payment in cash or securities based
on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing.
Warrants may be issued independently or together with any other securities that may be sold by us pursuant to this prospectus or any
combination of the foregoing and may be attached to, or separate from, such 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 warrant
agent.
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 8-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.
Subscription
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. In connection with a rights offering to holders of our capital stock a prospectus supplement will be distributed
to such holders on the record date for receiving rights in the rights offering set by us.
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 8-K that we file with the SEC, forms of the subscription rights, standby underwriting agreement or other agreements, if
any. 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 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.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent, if any, or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. 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 stockholders,
to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements,
as described in the applicable prospectus supplement.
Depositary
Shares
General.
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we decide to offer fractional
shares of our preferred stock, we will issue receipts for depositary shares. Each depositary share will represent a fraction of a share
of a particular series of our preferred stock, and the applicable prospectus supplement will indicate that fraction. The shares of preferred
stock represented by depositary shares will be deposited under a deposit agreement between us and a depositary that is a bank or trust
company that meets certain requirements and is selected by us. The depositary will be specified in the applicable prospectus supplement.
Each owner of a depositary share will be entitled to all of the rights and preferences of the preferred stock represented by the depositary
share. The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will
be distributed to those persons purchasing the fractional shares of our preferred stock in accordance with the terms of the offering.
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 8-K that we file with the SEC, forms of the deposit agreement, form of certificate of designation of underlying preferred
stock, form of depositary receipts and any other related agreements.
Dividends
and Other Distributions. The depositary will distribute all cash dividends or other cash distributions received by
it in respect of the preferred stock to the record holders of depositary shares relating to such preferred shares in proportion to the
numbers of depositary shares held on the relevant record date.
In
the event of a distribution other than in cash, the depositary will distribute securities or property received by it to the record holders
of depositary shares in proportion to the numbers of depositary shares held on the relevant record date, unless the depositary determines
that it is not feasible to make such distribution. In that case, the depositary may make the distribution by such method as it deems
equitable and practicable. One such possible method is for the depositary to sell the securities or property and then distribute the
net proceeds from the sale as provided in the case of a cash distribution.
Redemption
of Depositary Shares. Whenever we redeem the preferred stock, the depositary will redeem a number of depositary shares
representing the same number of shares of preferred stock so redeemed. If fewer than all of the depositary shares are to be redeemed,
the depositary shares to be redeemed will be selected by lot, pro rata or by any other equitable method as the depositary may determine.
Voting
of Underlying Shares. Upon receipt of notice of any meeting at which the holders of our preferred stock of any series are entitled
to vote, the depositary will mail the information contained in the notice of the meeting to the record holders of the depositary shares
relating to that series of preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct
the depositary as to the exercise of the voting rights represented by the number of shares of preferred stock underlying the holder’s
depositary shares. The depositary will endeavor, to the extent it is practical to do so, to vote the number of whole shares of preferred
stock underlying such depositary shares in accordance with such instructions. We will agree to take all action that the depositary may
deem reasonably necessary in order to enable the depositary to do so. To the extent the depositary does not receive specific instructions
from the holders of depositary shares relating to such preferred shares, it will abstain from voting such shares of preferred stock.
Withdrawal
of Shares. Upon surrender of depositary receipts representing any number of whole shares at the depositary’s office, unless
the related depositary shares previously have been called for redemption, the holder of the depositary shares evidenced by the depositary
receipts will be entitled to delivery of the number of whole shares of the related series of preferred stock and all money and other
property, if any, underlying such depositary shares. However, once such an exchange is made, the preferred stock cannot thereafter be
re-deposited in exchange for depositary shares. Holders of depositary shares will be entitled to receive whole shares of the related
series of preferred stock on the basis set forth in the applicable prospectus supplement. If the depositary receipts delivered by the
holder evidence a number of depositary shares representing more than the number of whole shares of preferred stock of the related series
to be withdrawn, the depositary will deliver to the holder at the same time a new depositary receipt evidencing the excess number of
depositary shares.
Amendment
and Termination of Depositary Agreement. The form of depositary receipt evidencing the depositary shares and any provision
of the applicable depositary agreement may at any time be amended by agreement between us and the depositary. We may, with the consent
of the depositary, amend the depositary agreement from time to time in any manner that we desire. However, if the amendment would materially
and adversely alter the rights of the existing holders of depositary shares, the amendment would need to be approved by the holders of
at least a majority of the depositary shares then outstanding.
The
depositary agreement may be terminated by us or the depositary if:
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all
outstanding depositary shares have been redeemed; or
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there
has been a final distribution in respect of the shares of preferred stock of the applicable
series in connection with our liquidation, dissolution or winding up and such distribution
has been made to the holders of depositary receipts.
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Resignation
and Removal of Depositary. The depositary may resign at any time by delivering to us notice of its election to do so. We may
remove a depositary at any time. Any resignation or removal will take effect upon the appointment of a successor depositary and its acceptance
of appointment.
Charges
of Depositary. We will pay all transfer and other taxes and governmental charges arising solely from the existence of any
depositary arrangements. We will pay all charges of each depositary in connection with the initial deposit of the preferred shares of
any series, the initial issuance of the depositary shares, any redemption of such preferred shares and any withdrawals of such preferred
shares by holders of depositary shares. Holders of depositary shares will be required to pay any other transfer taxes.
Notices.
Each depositary will forward to the holders of the applicable depositary shares all notices, reports and communications from
us which are delivered to such depositary and which we are required to furnish the holders of the preferred stock represented by such
depositary shares.
Miscellaneous.
The depositary agreement may contain provisions that limit our liability and the liability of the depositary to the holders of depositary
shares. Both the depositary and we are also entitled to an indemnity from the holders of the depositary shares prior to bringing, or
defending against, any legal proceeding. We or any depositary may rely upon written advice of counsel or accountants, or information
provided by persons presenting preferred shares for deposit, holders of depositary shares or other persons believed by us to be competent
and on documents believed by us or them to be genuine.
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 may be issued under an indenture (which we refer to herein
as an Indenture), which are contracts entered into between us and a trustee to be named therein. The Indenture has been filed as an exhibit
to the registration statement of which this prospectus forms a part. We may issue debt securities and incur additional indebtedness other
than through the offering of debt securities pursuant to this prospectus. It is likely that convertible debt securities will not be issued
under an Indenture.
The
debt securities may be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more guarantors,
if any. The obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting
a fraudulent conveyance under applicable law. In the event that any series of debt securities will be subordinated to other indebtedness
that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus supplement relating to the
subordinated debt securities.
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 unsecured indebtedness issued under an Indenture.
Each
prospectus supplement will describe the terms relating to the specific series of debt securities. These terms will include some or all
of the following:
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the
title of debt securities and whether the debt securities are senior or subordinated;
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any
limit on the aggregate principal amount of debt securities of such series;
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the
percentage of the principal amount at which the debt securities of any series will be issued;
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the
ability to issue additional debt securities of the same series;
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the
purchase price for the debt securities and the denominations of the debt securities;
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the
specific designation of the series of debt securities being offered;
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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;
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the
basis for calculating interest;
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the
date or dates from which any interest will accrue or the method by which such date or dates
will be determined;
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the
duration of any deferral period, including the period during which interest payment periods
may be extended;
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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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any
terms for the attachment to the debt securities of warrants, options or other rights to purchase
or sell our securities;
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if
the debt securities will be secured by any collateral and, if so, a general description of
the collateral and the terms and provisions of such collateral security, pledge or other
agreements;
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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;
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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 stock, 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 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;
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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;
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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, we do not anticipate the debt securities will 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.
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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FORMS
OF SECURITIES
Each
security may be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities
representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered
form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities
or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the
trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the
debt securities, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect
each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank,
trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the securities in the form of one or more fully registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases,
one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole
for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the
depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
The
specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be
described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary
arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face
amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution
of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect
to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes
under the applicable indenture, warrant agreement or unit agreement.
Except
as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented
by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities
in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement
or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures
of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit
agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest
in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture,
warrant agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give
or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Payments
to holders with respect to securities represented by a registered global security registered in the name of a depositary or its nominee
will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of
the Company, the trustees, the warrant agents, the unit agents or any other agent of the Company, agent of the trustees, the warrant
agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other payment or distribution to holders of that registered global security, will immediately credit participants’
accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records
of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held
through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities
held for the accounts of customers or registered in “street name,” and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the
registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered
global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent
or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received
by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been
held by the depositary.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus were passed upon
for us by Ellenoff Grossman & Schole LLP.
EXPERTS
The
consolidated financial statements of MICT, Inc. as of December 31, 2020 and 2019, and for each of the years in the two-year period ended
December 31, 2020, have been incorporated by reference herein in reliance upon the report of Ziv Haft, BDO member firm, an independent
registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and
auditing.
The
consolidated financial statements of Micronet Ltd. as of December 31, 2 2019 and 2018, and for each of the years in
the two-year period ended December 31, 2019, have been incorporated by reference herein in reliance upon the report of Ziv Haft, BDO
member firm, an independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing.
The
financial statements of Global Fintech Holdings Intermediate Ltd. incorporated on November 4, 2019 under the laws of the British Virgin
Islands (“Intermediate”), which comprise of the balance sheet as of December 31, 2019, and the related statements of operations,
accumulated other comprehensive loss, changes in stockholders’ deficit and cash flows for period from inception (November 4, 2019
through December 31, 2019, and the related notes to the financial statements, have been incorporated by reference herein in reliance
upon the report of RBSM LLP, an independent registered public accounting firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarter and periodic reports, proxy statements and other information with the Securities and Exchange Commission using the
Commission’s EDGAR system. The Commission maintains a web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission. The address of such site is http//www.sec.gov.
We
have filed a registration statement with the Commission relating to the offering of the shares. The registration statement contains information
which is not included in this prospectus. You may inspect or copy the registration statement at the Commission’s public reference
facilities or its website.
You
should rely only on the information contained in this prospectus. We have not authorized any person to provide you with any information
that is different.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this prospectus certain documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information in the documents incorporated by reference is
considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference
in this prospectus will automatically update and supersede information contained in this prospectus, including information in previously
filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information differs from
or is inconsistent with the old information. We have filed or may file the following documents with the SEC and they are incorporated
herein by reference as of their respective dates of filing.
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1.
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our
definitive proxy statement filed on Schedule
14A dated August 12, 2020 in connection with the Company’s special meeting of stockholders,
filed with the SEC on August 12, 2020;
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2.
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our
Annual Report on Form
10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 31, 2021;
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5.
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the
description of our Common Stock set forth in the registration statement on Form
8-A registering our Common Stock under Section 12 of the Exchange Act, which was filed
with the SEC on March 27, 2013, including any amendments or reports filed for purposes of
updating such description.
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All
documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities
offered under this prospectus have been sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated
in this registration statement by reference and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any subsequently
filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces such statement.
Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a
part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding
information, either furnished under Item 9.01 or included as an exhibit therein, that we may from time to time furnish to the SEC will
be incorporated by reference into, or otherwise included in, this prospectus, except as otherwise expressly set forth in the relevant
document. Subject to the foregoing, all information appearing in this prospectus is qualified in its entirety by the information appearing
in the documents incorporated by reference.
You
may request, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such
exhibits are specifically incorporate by reference), by contacting the Secretary, at MICT, Inc., 28 West Grand Avenue, Suite 3, Montvale,
New Jersey, 07645, or by telephone at (201) 225-0190. Information about us is also available at our website at ww.mict-inc.com. However,
the information in our website is not a part of this prospectus and is not incorporated by reference.
You
should rely only on the information contained in this document. We have not authorized anyone to provide you with information that is
different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate
on the date of this document.
Additional
risks and uncertainties not presently known may also impair our business operations. The risks and uncertainties described in this document
and other risks and uncertainties which we may face in the future will have a greater impact on those who purchase our common stock.
These purchasers will purchase our common stock at the market price or at a privately negotiated price and will run the risk of losing
their entire investment.
MICT,
INC.
$750,000,000
COMMON
STOCK
PREFERRED
STOCK
PURCHASE
CONTRACTS
WARRANTS
SUBSCRIPTION
RIGHTS
DEPOSITARY
SHARES
DEBT
SECURITIES
UNITS
May 17,
2021
The
information in this prospectus is not complete and may be changed. The selling shareholder may not sell the securities until the Registration
Statement filed with the Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not
an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED MAY 17, 2021
Prospectus
MICT,
INC.
___________________________
32,936,286
Shares of Common Stock
This
prospectus relates to the resale by the selling stockholders of up to an aggregate of 32,936,286 shares of common stock, par value $0.001
per share (the “Common Stock”), of MICT, Inc. (“MICT,” “we,” “us” or the “Company”).
The number of shares of Common Stock offered for sale by such selling stockholders consists of (i) 21,980,266 shares of Common Stock
held by Global Fintech Holdings Ltd. (“GFH”) (ii) 898,876 shares of Common Stock held by Alliance Global Partners (“AGP”),
or its affiliates, in the form of placement agent warrants pursuant to the Placement Agency Agreement, dated as of November 2, 2020;
(iii) 9,285,715 shares of Common Stock in the form of investor warrants (iv) 771,429 shares of Common Stock held by AGP in the form of
investor warrants.
We
are registering these shares on behalf of the selling stockholders, to be offered and sold by them from time to time, to satisfy certain
registration rights that we have granted to the selling stockholders. The selling stockholders identified in this prospectus, or their
respective transferees, pledgees or donees, or their respective successors, may offer the shares from time to time through public or
private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The
selling stockholders may resell the shares of common stock directly or through one or more underwriters, broker-dealers or agents. For
additional information on the methods of sale that may be used by the selling stockholders, see the section entitled “Plan of Distribution”
on page 11. For a list of the selling stockholders, see the section entitled “Selling Stockholders” on page 10.
Our
registration of the shares of Common Stock covered by this prospectus does not mean that the selling stockholders will offer or sell
any of the shares. No underwriter or other person has been engaged to facilitate the sale of the shares in this offering. The selling
stockholders will pay or assume discounts, commissions, fees of underwriters, selling brokers or dealer managers and similar expenses,
if any, incurred for the sale of shares of our Common Stock.
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire
prospectus and any amendments or supplements carefully before you make your investment decision.
Our
Common Stock is listed on The Nasdaq Capital Market under the symbol “MICT.” The last reported sale price of our Common Stock
on May 10, 2021 was $1.53 per share.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page [ ]and the risk factors in our most
recent Annual Report on Form 10-K filed on March 31, 2021, which is incorporated by reference herein, as well as in any other
recently filed quarterly or current reports. We urge you to carefully read this prospectus, together with the documents we
incorporate by reference, describing the terms of these securities before investing.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this Prospectus is May 17, 2021
TABLE
OF CONTENTS
You
should rely only on the information contained in this prospectus. Neither we nor the selling stockholders have authorized any other person
to provide you with information different from or in addition to that contained in this prospectus. If anyone provides you with different
or inconsistent information, you should not rely on it. The selling stockholders are not making an offer to sell these securities in
any jurisdiction where an offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate
only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may
have changed since that date.
We
further note that the representations, warranties and covenants made by us in any document that is filed as an exhibit to the registration
statement of which this prospectus is a part and in any document that is incorporated by reference herein were made solely for the benefit
of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements,
and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants
were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
In
this prospectus, we rely on and refer to information and statistics regarding our industry. We obtained this statistical, market and
other industry data and forecasts from publicly available information. While we believe that the statistical data, market data and other
industry data and forecasts are reliable, we have not independently verified the data.
Unless
the contest otherwise requires, the terms “MICT,” the “Company,” “we,” “us,” “our”
and similar terms used in this prospectus refer to MICT, Inc.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein may contain forward looking statements that involve risks and uncertainties.
All statements other than statements of historical fact contained in this prospectus and the documents incorporated by reference herein,
including statements regarding future events, our future financial performance, business strategy, and plans and objectives of management
for future operations, are forward-looking statements. We have attempted to identify forward-looking statements by terminology including
“anticipates,” “believes,” “can,” “continue,” “could,” “estimates,”
“expects,” “intends,” “may,” “plans,” “potential,” “predicts,”
“should,” or “will” or the negative of these terms or other comparable terminology. Although we do not make forward
looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are
only predictions and involve known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk
Factors” or elsewhere in this prospectus and the documents incorporated by reference herein, which may cause our or our industry’s
actual results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Moreover, we
operate in a highly regulated and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict
all risk factors, nor can we address the impact of all factors on our business or the extent to which any factor, or combination of factors,
may cause our actual results to differ materially from those contained in any forward-looking statements.
We
have based these forward-looking statements largely on our current expectations and projections about future events and financial trends
that we believe may affect our financial condition, results of operations, business strategy, short term and long term business operations,
and financial needs. These forward-looking statements are subject to certain risks and uncertainties that could cause our actual results
to differ materially from those reflected in the forward looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in this prospectus, and in particular, the risks discussed below and under the heading
“Risk Factors” and those discussed in other documents we file with the Securities and Exchange Commission, or SEC. The following
discussion should be read in conjunction with the financial statements for the fiscal years ended December 31, 2018 and 2017 and notes
incorporated by reference therein. We undertake no obligation to revise or publicly release the results of any revision to these forward-looking
statements, except as required by law. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances
discussed in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied
in the forward-looking statement.
You
should not place undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus. Except
as required by law, we undertake no obligation to update or revise publicly any of the forward-looking statements after the date of this
prospectus to conform our statements to actual results or changed expectations.
Any
forward-looking statement you read in this prospectus or any document incorporated by reference reflects our current views with respect
to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, operating results,
growth strategy and liquidity. You should not place undue reliance on these forward-looking statements because such statements speak
only as to the date when made. We assume no obligation to publicly update or revise these forward-looking statements for any reason,
or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new
information becomes available in the future, except as otherwise required by applicable law. You are advised, however, to consult any
further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC. You should understand
that it is not possible to predict or identify all risk factors. Consequently, you should not consider any such list to be a complete
set of all potential risks or uncertainties.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information
that you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents
incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information With
Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and the financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before making
an investment decision.
Overview
We
were formed as a Delaware corporation on January 31, 2002. On March 14, 2013, we changed our corporate name from Lapis Technologies,
Inc. to Micronet Enertec Technologies, Inc. On July 13, 2018, following the sale of our former subsidiary Enertec Systems Ltd., we changed
our name from Micronet Enertec Technologies, Inc. to MICT, Inc. Our shares have been listed for trading on The Nasdaq Capital Market
under the symbol “MICT” since April 29, 2013. Prior to July 1st 2020, MICT operated primarily through its
Israel-based majority-owned subsidiary, Micronet.
On
July 1, 2020, MICT completed its acquisition (the “Acquisition”) of GFH Intermediate Holdings Ltd. (“GFHI” or
“Intermediate”), pursuant to that certain Agreement and Plan of Merger entered into on November 7, 2019 by and between MICT,
GFHI, Global Fintech Holding Ltd. (“GFH”), a British Virgin Islands company and the sole shareholder of GFHI, and MICT Merger
Subsidiary Inc., a British Virgin Islands company and a wholly owned subsidiary of MICT (“Merger Sub”), as amended and restated
on April 15, 2020 (the “Restated Merger Agreement” and “Merger”). Intermediate is a financial technology company
with a marketplace in China and in other areas of the world and is currently in the process of building various platforms for business
opportunities in various verticals and technology segments in order to capitalize on such technology and business. Intermediate plans
to continue and advance its capabilities and its technological platforms through acquisition or license of technologies to support in
growth efforts in the different market segments as more fully described below. Accordingly, after the Merger, MICT’s includes the
business of Intermediate, its wholly-owned subsidiary, operating through its operating subsidiaries, as described herein.
Our
current business, following the completion of the Acquisition, is primarily comprised and focused on the growth and development of the
Intermediate financial technology offering and the marketplace in China. We aim and are in the process of building various platforms
for business opportunities in various verticals and technology segments in order to capitalize on such technology and business
As
a result of our Acquisition of Intermediate and the subsequent work we have undertaken with the management of Intermediate, we are positioned
to establish ourselves, through our operating subsidiaries, to serve the markets as a financial technology company with a significant
China marketplace and in other areas of the world. Intermediate has built various platforms to capitalize on business opportunities in
a range of verticals and technology segments, including:” stock trading and wealth management; oil and gas trading; and insurance
brokerage and is seeking to secure material contracts in these valuable market segments in China while developing opportunities, in order
to allow Intermediate to access to such markets. We will continue to add to the capabilities of such platforms through acquisition and/or
the license of technologies to support these efforts in the different market segments as more fully described below. By building secure,
reliable and scalable platforms with high volume processing capability, we intend to provide customized solutions that address the needs
of a highly diverse and broad client base.
We
are planning to implement our plans taking advantage of Intermediate experience and experience in local markets in China, and through
the Company’s operating subsidiaries which have begun to secure material contracts in fast growing market segments in China.
Our
current valuable opportunities have given us access the following market segments:
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●
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Stock
trading and wealth management
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As
set hereunder, these opportunities are supported and shall further planned to be executed and realized through our business development
efforts which as set forth herein include the acquisition of potential targets entities, business and assets (such as applicable required
licenses) in the relevant business space and segments in which we plan to operate, which allow the Company to enter the market quickly
and leverage on such existing assets in order to promote its growth strategy.
We
have launched our insurance platform operated by GFHI for the Chinese market and from that day onward, we have been generating revenues
in GFHI. While the revenues were not material in 2020, these revenues are building and we expect these revenues to grow considerably
during 2021 as this business establishes itself in the market as a reputable service available to consumers.
Intermediate
is developing an advanced technology securities trading platform capable of making available to the investors and potential customers
advanced investing tools by offering, through its operating subsidiaries, a fully digitized and mobile app-enabled brokerage service
covering several markets. Harnessing the security, reliability and volume capabilities of this platform and its management’s longstanding
commercial relationships in China, we will aim to provide investing services, including stock trading and clearing, margin financing,
market data and information, and interactive social features to retail investors through our proprietary one-stop digital platform. The
development of the platform is very advanced and is expected to be completed by the end of the second quarter of 2021.
As
a result of our acquisition of Intermediate and our subsequent acquisition on February 26, 2021 of Huapei Global Securities, Ltd. (“Huapei”),
a Hong Kong securities and investment services firm, with the completion of the acquisition we have now obtained the licenses and permits
for operating the online platform and expect to launch the online stock trading platform initially in Hong Kong. This will be after rigorous
testing to ensure scale and reliability of the systems, once this is complete we will then be in a position to notify the Hong Kong regulator
of our intended launch date of the new online trading APP.
Recent
Developments
Guang Xi
Zhong Tong transaction:
On
January 1, 2021 we have entered via Tianjin Bokefa technology co., ltd., our fully owned subsidiary, into a transaction with the shareholders
of Guang Xi Zhong Tong, a local chinses entity with business and operations in the field of broker insurance pursuant to the transaction,
we have granted to the Guang Xi Zhong Tong shareholders (the “Shareholders”) with a loan in the total amount of $6,125,000
(“Loan Amount”) which is designated to be used and granted to Guang Xi Zhong Tong as working capital. In consideration for
the loan the parties have entered into various additional agreement which include among other: (i) a pledge agreement pursuant to which
the Shareholders have pledged their shares for the benefit of Tianjin Bokefa technology co., ltd. as a security in order to secure the
Loan Amount (ii) exclusive option agreement pursuant to which Tianjin Bokefa technology co., ltd has an exclusive option to purchase
the entire shares of Guang Xi Zhong Tong from the Shareholders (“Option Agreement”) under such terms set forth in the Option
Agreement which include an exercise price not less than the Loan Amount and the right to convert the Loan Amount into the purchased shares
(iii) Entrustment Agreement and Power of Attorney Agreement pursuant to which the Shareholders irrevocably entrusted and appointed Tianjin
Bokefa as its proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of
Guangxi Zhongtong in the Shareholder’s equity interest in Guangxi Zhongtong (iv) business cooperation agreement and a master exclusive
service agreement which grants Tianjin Bokefa with rights related to the Guang Xi Zhong Tong business and operations designed to secure
repayment of the Loan Amount.
Beijing
Fucheng Lianbao Technology Co., Ltd transaction
On
February 10, 2021, the Company closed a transaction pursuant to which it acquired (via Beijing Fucheng Lianbao Technology Co., Ltd. in
which it holds 24% and engaged in a VIE structure) all of the shares of Beijing Yibao Technology Co., Ltd., and indirectly its fully
owned subsidiary Beijing Fucheng Insurance Brokerage Co., Ltd. (the “Fucheng Insurance Transaction”). Beijing Fucheng Insurance
Brokerage Co., Ltd. is a Chinese insurance brokerage agency and is a nationwide licensed entity allowing it to offer insurance brokerage
services for a broad range of insurance products. The nationwide license will allow us, via the Fucheng Insurance Transaction with flexibility
to offer and create tailor-made insurance products, to leverage directly to customers or through distribution partners and to procure
better deals with both our existing and new insurance company partners. The consummation of the Fucheng Insurance Transaction will enable
us to accelerate the onboarding of new agents throughout China onto our platforms. It also creates the opportunity to promote our business
through some of China’s biggest online portals, which will provide business-to-business-to-consumer (B2B2C) as well as business-to-consumer
(B2C) channels. In addition, the Fucheng Insurance acquisition initiates the nationwide rollout of its mobile application, which will
facilitate access to those portals’ vast customer bases, offering MICT’S full complement of insurance products. The shares
were acquired for approximately $5.7 million, and funded through MICT.
Acquisition
Agreement with Huapei Global Securities Limited
On
October 2, 2020 our indirect wholly-owned subsidiary BI Intermediate (Hong Kong) Limited (“BI Intermediate”) has entered
a strategic agreement (“Strategic Agreement”) to acquire, the entire share capital of Huapei Global Securities Limited
(“Huapei”), Hong Kong based securities and investments firm for a total purchase price of U.S.$3.0 million (“Purchase
Price”). Huapei is licensed to trade securities on leading exchanges in Hong Kong, the U.S. and China including the valuable
China A-Shares, all of which are the primary target markets for Company’s global fintech business. The Strategic Agreement provided
that the acquisition shall be consummated in two phases, an initial purchase of 9% of the share capital of Huapei and thereafter, the
remaining 91% of Huapei would be purchased by BI Intermediate upon and subject to the approval of the Hong Kong Securities and Futures
Commission (SFC), the principal regulator of Hong Kong’s securities and futures markets. On November 11, 2020, BI Intermediate
closed on its acquisition of the first 9% of its acquisition and paid 9% of the Purchase Price. Additionally, pursuant to the Strategic
Agreement upon the initial closing, BI Intermediate made a loan to Huapei in an amount equivalent to the remaining 91% of the purchase
price. Upon the closing of the remaining 91%, which remains subject to SFC approval, the loan will be cancelled, and BI Intermediate
will acquire the remaining 91% of Huapei. The loan was secured against the pledge of the 91% of the share capital of Huapei yet purchased
at such time by BI Intermediate. The obligations of Huapei, the seller of the interests of Huapei, under the loan agreement have been
guaranteed by the ultimate controller of Huapei . On February 26, 2021 we have completed the acquisition of Huapei upon the purchase
of remaining outstanding share capital (91% of the share capital) of Huapei. The acquisition was consummated following the receipt of
the approval of the SFC for the change in the substantial shareholder of Huapei. In consideration for the entire share capital of Huapei
, we paid a total Purchase Price of $2,936,000 (reflecting the net asset value of Huapei Global estimated at $2,034,000, and a premium
$902,000 (the “Consideration”). The Company is in the process of integrating its mobile app supporting platform with Huapei’s
licensed trading assets.
As
a result of our acquisition of Huapei we have now obtained the licenses and permits for operating the online platform and expect to launch
the online stock trading platform initially in Hong Kong once we have completed rigorous testing to ensure scale and reliablility of
the systems. Thereafter. we will be in a position to notify the Hong Kong regulator of our intended launch date of the new online trading
APP.
Technology
will permeate every part of our stock trading business, allowing us, as a result of our Acquisition of Intermediate, to offer a redefined
user experience built upon an agile, stable, scalable and secure platform. We aim to primarily serve the emerging affluent Chinese population,
pursuing a massive opportunity to facilitate a once-in-a-generation shift in the wealth management industry and build a digital gateway
into broader financial services. We intend to launch our stock trading business on the premise that no one should be precluded from investing
on the basis of prohibitive transaction costs or financial industry inexperience. The platform is designed to provide an elegant user
experience integrating clear and relevant market data, social collaboration and best-in-class trade execution. Over time, we intend to
continuously enhance this technology and build a comprehensive, user-oriented and cloud-based platform that is fully-licensed to conduct
securities brokerage business beginning in China and followed by other jurisdictions. We expect this to serve as a foundation from which
we can execute growth strategies and operate efficiently offering the market strong competitive products.
We
also intend to take steps to broaden the platform’s reach and promote the exchange of information through social network services.
In contrast to traditional investing platforms and other online brokers, we intend to embed social media tools to create a user-centered
network and provide connectivity to users, investors, companies, analysts, media and key opinion leaders. We expect this to foster the
free flow of information, reduce information asymmetry and support the investing decision-making process. For instance, users would be
able to exchange market views, watch live broadcasts of corporate events, and participate in investment education courses offered through
the platform. Importantly, we expect such social networking tools to serve as a powerful engagement tool. User activities would provide
us with invaluable user data which informs its product development and monetization efforts.
Offering
of Secured Convertible Debentures
On
November 2, 2020, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors
(the “Investors”) for the purpose of raising $25.0 million in gross proceeds for the Company (the “Offering”).
Pursuant to the terms of the Purchase Agreement, the Company sold in a registered direct offering, an aggregate of 10,000,000 units (each,
a “Unit”), with each Unit consisting of one share of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), and one warrant to purchase 0.8 of one share of Common Stock (each, a “Warrant”). at a purchase price of $2.50
per Unit. The Warrants are exercisable six months after the date of issuance at an exercise price of $3.12 per share and will expire
five years following the date the Warrants become exercisable. The closing of the sale of Units pursuant to the Securities Purchase
Agreement occurred on November 4, 2020. By December 31, 2020, the Company had received a total of $22.325 million in gross proceeds pursuant
to Offering and issued in the aggregate, 7,600,000 Units. The remaining gross proceeds, in the additional aggregate amount of $2.675
million, were received by the Company on March 1, 2021 and in consideration for such proceeds, the Company issued the remaining 2,400,000
units.
On
February 11, 2021, the Company announced that it has entered into a Securities Purchase Agreement (the “Purchase Agreement”)
with certain institution investors for the sale of (i) 22,471,904 shares of common stock, (ii) 22,471,904 Series A Warrants to purchase
22,471,904 shares of common stock and (iii) 11,235,952 Series B Warrants to purchase 11,235,952 shares of common stock at a combined
purchase price of $2.67 (the “Offering”). The gross proceeds to the Company from the Offering are expected to be approximately
$60,000,000 before deducting placement agent fees and other estimated Offering expenses. The Series A Warrants will be exercisable six
months after the date of issuance, have an exercise price of $2.80 per share and will expire five and one-half years from the date of
issuance. The Series B Warrants will be exercisable six months after the date of issuance, have an exercise price of $2.80 per share
and will expire three and one-half years from the date of issuance.
On
March 2, 2021, the Company entered into a Securities Purchase Agreement with certain investors for the purpose of raising approximately
$54,000,000 in gross proceeds for the Company. Pursuant to the terms of the Purchase Agreement, the Company agreed to sell, in a registered
direct offering, an aggregate of 19,285,715 shares of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), at a purchase price of $2.675 per Share and in a concurrent private placement, warrants to purchase an aggregate of 19,285,715
shares of Common Stock, at a purchase price of $0.125 per Warrant, for a combined purchase price per Share and Warrant of $2.80 (the
“Purchase Price”) which was priced at the market under Nasdaq rules. The Warrants are immediately exercisable at an exercise
price of $2.80 per share, subject to adjustment, and expire five years after the issuance date. The closing date was on March 4, 2021.
The Company received net proceeds of $48.69 million on March 4, 2021, after deducting the Placement Agent’s fees and other expenses.
The
Offering
The
selling stockholders named in this prospectus may offer and sell up to 32,936,286 shares of our common stock, par value $0.001 per share
(the “Common Stock”). The number of shares of Common Stock offered for sale by such selling stockholders consists of (i)
21,980,266 shares of Common Stock held by Global Fintech Holdings Ltd. (“GFH”) (ii) 898,876 shares of Common Stock held by
Alliance Global Partners (“AGP”) in the form of placement agent warrants pursuant to the Placement Agency Agreement, dated
as of November 2, 2020; (iii) 9,285,715 shares of Common Stock in the form of investor warrants (iv) 771,429 shares of Common Stock held
by AGP in the form of investor warrants.
Our
Common Stock is currently listed on Nasdaq under the symbol “MICT.” We will not receive any of the proceeds of sales by the
selling stockholders of any of the shares covered by this prospectus.
When
we refer to the “selling stockholders” in this prospectus, we are referring to the purchasers of the foregoing securities,
and their permitted transferees or other successors-in-interest that may be identified in a supplement to this prospectus or, if required,
a post-effective amendment to the registration statement of which this prospectus is a part.
THE
OFFERING
|
Common
stock offered by the selling stockholders herein:
|
32,936,286
shares
|
|
|
|
|
Common stock outstanding:
|
113,908,845
shares
|
|
|
|
|
Use
of Proceeds:
|
We
will not receive any proceeds from the sale of the common stock by the selling stockholders.
|
|
|
|
|
The
Offering Price:
|
The
selling stockholders may sell all or a portion of their shares through public or private transactions at prevailing market prices
or at privately negotiated prices.
|
|
|
|
|
The
Nasdaq Capital Market Symbol:
|
MICT
|
|
|
|
|
Risk
Factors:
|
An investment
in our company is highly speculative and involves a significant degree of risk. See “Risk Factors” and other
information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in shares
of our common stock.
|
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of the common stock by the selling stockholders.
The
holders of the Warrants are not obligated to exercise the Warrants, and we cannot predict whether the holders of the Warrants will choose
to exercise the Warrants. If the Warrants are exercised in full, we would receive gross proceeds of approximately $30,676,856. We currently
intend to use such proceeds, if any, for working capital and general corporate purposes.
DETERMINATION
OF OFFERING PRICE
The
selling stockholders will offer common stock at the prevailing market prices or a privately negotiated price as it may determine from
time to time.
The
offering price of our common stock to be sold by the selling stockholders does not necessarily bear any relationship to our book value,
assets, past operating results, financial condition or any other established criteria of value. The facts considered in determining the
offering price were our financial condition and prospects, our limited operating history and the general condition of the securities
market.
In
addition, there is no assurance that our common stock will trade at market prices in excess of the offering price as prices for common
stock in any public market will be determined in the marketplace and may be influenced by many factors, including the depth and liquidity.
SELLING
STOCKHOLDERS
The
following table sets forth certain information as of May 14, 2021 regarding the selling stockholders and the shares of common stock currently
owned by them and offered by them in this prospectus. Except as indicated in the footnotes to the following table, the selling stockholders
named in the table have sole voting and investment power with respect to the shares set forth opposite their name. The percentage of
ownership of the selling stockholders in the following table is based upon 113,908,845 shares of common stock outstanding as of
May 14, 2021
Other
than as described in the footnotes below, none of the selling stockholders or their affiliates has held a position as an officer or director
of the Company, nor do the selling stockholders or any of their affiliates have any material relationship of any kind with us or any
of our affiliates. All information with respect to share ownership has been furnished by the selling stockholders. The common stock being
offered is being registered to permit secondary trading of the shares and the selling stockholders may offer all or part of the common
stock owned for resale from time to time. Other than as described in the footnotes below, the selling stockholders do not have
any family relationships with our officers, directors or controlling stockholders. Furthermore, none of the selling stockholders is a
registered broker-dealer or an affiliate of a registered broker-dealer.
The
term “selling stockholder” also includes any transferees, pledges, donees, or other successors in interest to the selling
stockholders named in the table below. To our knowledge, subject to applicable community property laws, each person named in the table
has sole voting and investment power with respect to the common stock set forth opposite such person’s name. We will file a supplement
to this prospectus (or a post-effective amendment hereto, if necessary) to name successors to any named selling stockholder who is able
to use this prospectus to resell the securities registered hereby.
|
Name
of Selling Stockholder
|
|
Number
of Shares of Common Stock Owned
Prior
to Offering
|
|
Maximum
Number of Shares of Common Stock to be Sold Pursuant
to
this Prospectus
|
|
Number
of Shares of Common Stock Owned
After
Offering Assuming All
Shares
are Sold (1)
|
|
Percentage
of Common Stock Owned
After
Offering Assuming All
Shares
are Sold (1)
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|
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|
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-
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|
|
|
|
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%
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|
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%
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-
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PLAN
OF DISTRIBUTION
The
common stock held by the selling stockholders may be sold, distributed, transferred or otherwise disposed of from time to time by the
selling stockholders directly to one or more purchasers or through brokers, dealers, or underwriters who may act solely as agents at
market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices, or at fixed prices,
which may be sold on any stock exchange, market or trading facility on which the shares are traded or in private transactions. The sale
of the selling stockholders’ common stock offered by this prospectus may be effected in one or more of the following methods:
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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●
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transactions
involving cross or block trades;
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●
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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|
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●
|
an
exchange distribution in accordance with the rules of the applicable exchange;
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●
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in
privately negotiated transactions;
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●
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short
sales after the registration statement, of which this prospectus forms a part, becomes effective;
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|
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●
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broker-dealers
may agree with the selling stockholder to sell a specified number of such shares at a stipulated
price per share;
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|
●
|
through
the writing of options on the shares;
|
|
|
●
|
a
combination of any such methods of sale; and
|
|
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●
|
any
other method permitted pursuant to applicable law.
|
In
order to comply with the securities laws of certain states, if applicable, the shares of the selling stockholders may be sold in the
states only through registered or licensed brokers or dealers. In addition, in certain states, such shares may not be sold unless they
have been registered or qualified for sale in the state or an exemption from the registration or qualification requirement is available
and complied with.
The
selling stockholders may also sell shares of common stock under Rule 144 promulgated under the Securities Act, if available, rather than
under this prospectus. In addition, the selling stockholders may transfer the shares of common stock by other means not described in
this prospectus.
In
connection with the sale of the shares of common stock or interests in shares of common stock, the selling stockholders may enter into
hedging transactions, provided that to the extent such hedging transactions involve short sales to be covered by the Shares, such transactions
occur only after the effective date of the registration statement of which this prospectus forms a part with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume.
The selling stockholders may also sell shares of common stock short after the effective date of the registration statement of which this
prospectus is a part and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. The selling stockholders may also enter into option or other transactions after the effective
date of the registration statement of which this prospectus is a part with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered
by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
The
selling stockholders may also sell the shares directly to market makers acting as principals and/or broker-dealers acting as agents for
themselves or their customers. Such broker-dealers may receive compensation in the form of discounts, concessions or commissions from
the selling stockholder and/or the purchasers of shares for whom such broker-dealers may act as agents or to whom they sell as principal
or both, which compensation as to a particular broker-dealer might be in excess of customary commissions. Market makers and block purchasers
purchasing the shares will do so for their own account and at their own risk. It is possible that the selling stockholders will attempt
to sell shares of common stock in block transactions to market makers or other purchasers at a price per share which may be below the
then market price. The selling stockholders cannot assure that all or any of the shares offered in this prospectus will be issued to,
or sold by, the selling stockholder.
Brokers,
dealers, underwriters, or agents participating in the distribution of the shares held by the selling stockholders as agents may receive
compensation in the form of commissions, discounts, or concessions from the selling stockholders and/or purchasers of the common stock
for whom the broker-dealers may act as agent. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities Act.
The
selling stockholders acquired the securities offered hereby in the ordinary course of business and have advised us that they have not
entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their
shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common
stock by the selling stockholders. If we are notified by the selling stockholder that any material arrangement has been entered into
with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus.
With
regard only to the shares it sells for its own behalf, each selling stockholder may be deemed an “underwriter” within the
meaning of the Securities Act. This offering as it relates to each selling stockholder will terminate on the date that all shares
issued to and issuable to such selling stockholder that are offered by this prospectus have been sold by the selling stockholder.
We
may suspend the sale of shares by the selling stockholders pursuant to this prospectus for certain periods of time for certain reasons,
including if the prospectus is required to be supplemented or amended to include additional material information.
If
the selling stockholders use this prospectus for any sale of the shares of common stock, the selling stockholders will be subject to
the prospectus delivery requirements of the Securities Act.
We
have agreed to indemnify the selling stockholders against certain liabilities, including under the Securities Act and state securities
laws, relating to the registration of the shares offered by this prospectus
Regulation
M
The
anti-manipulation rules of Regulation M under the Exchange Act of 1934, as amended (the “Exchange Act”) may apply to sales
of our common stock and activities of the selling stockholders.
We
have advised the selling stockholders that while they are engaged in a distribution of the shares included in this prospectus it is required
to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes the selling stockholders,
any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding for or purchasing,
or attempting to induce any person to bid for or purchase any security which is the subject of the distribution until the entire distribution
is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with
the distribution of that security. All of the foregoing may affect the marketability of the shares offered hereby this prospectus.
DESCRIPTION
OF SECURITIES TO BE REGISTERED
General
The
total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 265,000,000, of which 250,000,000
shares shall be Common Stock of the par value of $0.001 per share and 15,000,000 shares shall be Preferred Stock of the par value of
$0.001 per share.
Common
Stock
Holders
of Common Stock are entitled to one vote per share. MICT’s certificate of incorporation, as amended and restated, does not provide
for cumulative voting. Holders of Common Stock are entitled to receive ratably such dividends, if any, as may be declared by the board
of directors out of legally available funds. Upon liquidation, dissolution or winding-up, the holders of Common Stock are entitled to
share ratably in all of MICT’s assets which are legally available for distribution, after payment of or provision for all liabilities
and the liquidation preference of any outstanding preferred stock. The holders of Common Stock have no preemptive, subscription, redemption
or conversion rights.
Preferred
Stock
MICT is authorized to issue up to 15,000,000 shares of preferred stock, par value $0.001 per share, none of which are outstanding. The
shares of preferred stock may be issued in series, and each such series shall have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the certificate of designation relating to such series, as approved by MICT’s
board of directors and filed with the Delaware Secretary of State.
Prior
to the issuance of any series of preferred stock, MICT will further amend its certificate of incorporation by way of a certificate of
designation designating such series and its terms. MICT will file a copy of the certificate of designation that contains the terms of
each such series of preferred stock with the Delaware Secretary of State and the SEC each time MICT issues a new series of preferred
stock. Each certificate of designation will establish the number of shares included in a designated series and fix the designation, powers,
privileges, preferences and rights of the shares of each series as well as any applicable qualifications, limitations or restrictions,
including, as applicable:
|
|
●
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the
designation, stated value and liquidation preference of the series;
|
|
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●
|
the
number of shares within the series;
|
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●
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the
dividend rate or rates (or method of calculation), the date or dates from which dividends
shall accrue, and whether such dividends shall be cumulative or noncumulative and, if cumulative,
the dates from which dividends shall commence to cumulate;
|
|
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●
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any
redemption or sinking fund provisions;
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●
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the
amount that shares of the series shall be entitled to receive in the event of MICT’s
liquidation, dissolution or winding-up;
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|
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●
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the
terms and conditions, if any, on which shares of the series shall be convertible or exchangeable
for shares of MICT’s stock of any other class or classes, or other series of the same
class;
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|
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●
|
the
terms and conditions, if any, on which shares of the series shall be convertible or exchangeable
for shares of MICT’s stock of any other class or classes, or other series of the same
class
|
|
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●
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the
conditions and restrictions, if any, on the creation of indebtedness by MICT or by any subsidiary,
or on the issuance of any additional stock ranking on a parity with or prior to the shares
of the series as to dividends or upon liquidation; and
|
|
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●
|
any
additional dividend, liquidation, redemption, sinking or retirement fund and other rights,
preferences, privileges, limitations and restrictions of the series.
|
The
issuance of any preferred stock could adversely affect the rights of the holders of Common Stock and, therefore, reduce the value of the
Common Stock. The ability of MICT’s board of directors to issue preferred stock could discourage, delay or prevent a takeover or
other corporate action.
Warrants
MICT
currently has issued and outstanding warrants to purchase 64,814,337 shares of Common Stock at an average exercise price of $2.73 per
share.
Units
MICT
currently has no outstanding units.
Transfer
Agent and Registrar for Common Stock
The
current transfer agent and registrar for MICT is Worldwide Stock Transfer, LLC, located at One University Plaza, Suite 505, Hackensack,
NJ 07601.
Listing
MICT
Common Stock is listed on Nasdaq under the symbol “MICT”.
INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Section
145 of the Delaware General Corporation Law, or Delaware law, inter alia, empowers a Delaware corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation
or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. Similar indemnity is authorized for such persons against expenses (including
attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of any such threatened, pending
or completed action or suit if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case
upon a determination by the stockholders or disinterested directors or by independent legal counsel in a written opinion that indemnification
is proper because the indemnitee has met the applicable standard of conduct.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. We maintain policies
insuring our officers and directors against certain liabilities for actions taken in such capacities, including liabilities under the
Securities Act.
Our
certificate of incorporation and bylaws require us to indemnify our directors to the fullest extent permitted under Delaware law or any
other applicable law in effect, but if such statute or law is amended, we may change the standard of indemnification only to the extent
that such amended statute or law permits us to provide broader indemnification rights to our directors. We must indemnify such officers
and employees in the same manner and to the same extent that we are required to indemnify our directors under our certificate of incorporation
and bylaws. Our certificate of incorporation limits the personal liability of a director to us or our stockholders to damages for breach
of the director’s fiduciary duty. Pursuant to indemnification agreements we entered into with each of our directors, we are further
required to indemnify our directors to the fullest extent permitted under Delaware law and our bylaws; provided that each such director
shall enjoy the greater of (i) the advancement and indemnification rights permitted under our certificate of incorporation and bylaws
for directors and officers as of the date of such indemnification agreement or (ii) the benefits so afforded by amendments thereto.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, or otherwise, 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.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus were passed upon
for us by Ellenoff Grossman & Schole LLP.
EXPERTS
The
consolidated financial statements of MICT as of December 31 2019, and for each of the years in the two-year period ended December 31,
2020, have been incorporated by reference herein in reliance upon the report of Ziv Haft, BDO member firm (“Ziv Haft”), an
independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The
consolidated financial statements of Micronet as of December 31, 2019 and 2018, and for each of the years in the two-year period ended
December 31, 2019, have been incorporated by reference herein in reliance upon the report of Ziv Haft, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The
financial statements of Global Fintech Holdings Intermediate Ltd., which comprise of the balance sheet as of December 31, 2019, and the
related statements of operations, accumulated other comprehensive loss, changes in stockholders’ deficit and cash flows for period
from inception (November 4, 2019 through December 31, 2019, and the related notes to the financial statements, have been incorporated
by reference herein in reliance upon the report of RBSM LLP, an independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarter and periodic reports, proxy statements and other information with the Securities and Exchange Commission using the
Commission’s EDGAR system. The Commission maintains a web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission. The address of such site is http//www.sec.gov.
We
have filed a registration statement with the Commission relating to the offering of the shares. The registration statement contains information
which is not included in this prospectus. You may inspect or copy the registration statement at the Commission’s public reference
facilities or its website.
You
should rely only on the information contained in this prospectus. We have not authorized any person to provide you with any information
that is different.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this prospectus certain documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information in the documents incorporated by reference is
considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference
in this prospectus will automatically update and supersede information contained in this prospectus, including information in previously
filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information differs from
or is inconsistent with the old information. We have filed or may file the following documents with the SEC and they are incorporated
herein by reference as of their respective dates of filing.
|
|
1.
|
our
definitive proxy statement filed on Schedule
14A dated August 12, 2020 in connection with the Company’s special meeting of stockholders,
filed with the SEC on August 12, 2020;
|
|
|
2.
|
our
Annual Report on Form
10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 31, 2021;
|
|
|
5.
|
the
description of our Common Stock set forth in the registration statement on Form
8-A registering our Common Stock under Section 12 of the Exchange Act, which was filed
with the SEC on March 27, 2013, including any amendments or reports filed for purposes of
updating such description.
|
All
documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities
offered under this prospectus have been sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated
in this registration statement by reference and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any subsequently
filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces such statement.
Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a
part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding
information, either furnished under Item 9.01 or included as an exhibit therein, that we may from time to time furnish to the SEC will
be incorporated by reference into, or otherwise included in, this prospectus, except as otherwise expressly set forth in the relevant
document. Subject to the foregoing, all information appearing in this prospectus is qualified in its entirety by the information appearing
in the documents incorporated by reference.
You
may request, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such
exhibits are specifically incorporate by reference), by contacting our Controller, at MICT, Inc., 28 West Grand Avenue, Suite 3, Montvale,
NJ 07645, or by telephone at (201) 224-0190. Information about us is also available at our website at www.mict-inc.com. However, the
information in our website is not a part of this prospectus and is not incorporated by reference.
MICT,
INC.
32,936,286
Shares of Common Stock
PROSPECTUS
May
17, 2021
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
Company is paying all expenses of the offering. No portion of these expenses will be borne by the selling security holder. The
selling security holder, however, will pay any other expenses incurred in selling its common stock, including any brokerage commissions
or costs of sale. Following is an itemized statement of all expenses in connection with this registration statement. All
of the amounts shown are estimates, except for the SEC Registration Fees.
|
SEC registration
fee
|
|
|
$[ ]
|
|
|
Printing
|
|
|
*
|
|
|
Legal fees and expenses
|
|
|
$[ ]
|
|
|
Accounting fees and expenses
|
|
|
$[ ]
|
|
|
Miscellaneous
|
|
|
*
|
|
|
Total
|
|
|
$[ ]
|
|
|
|
*
|
These fees
are calculated based on the securities offered and the number of issuances and accordingly
cannot be estimated at this time. The applicable prospectus supplement will set forth the
estimated amount of expenses of any offering of securities.
|
Item 15.
Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law, or Delaware law, inter alia, empowers a Delaware corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation
or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. Similar indemnity is authorized for such persons against expenses (including
attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of any such threatened, pending
or completed action or suit if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case
upon a determination by the stockholders or disinterested directors or by independent legal counsel in a written opinion that indemnification
is proper because the indemnitee has met the applicable standard of conduct.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. We maintain policies
insuring our officers and directors against certain liabilities for actions taken in such capacities, including liabilities under the
Securities Act.
Our
certificate of incorporation and bylaws require us to indemnify our directors to the fullest extent permitted under Delaware law or any
other applicable law in effect, but if such statute or law is amended, we may change the standard of indemnification only to the extent
that such amended statute or law permits us to provide broader indemnification rights to our directors. We must indemnify such officers
and employees in the same manner and to the same extent that we are required to indemnify our directors under our certificate of incorporation
and bylaws. Our certificate of incorporation limits the personal liability of a director to us or our stockholders to damages for breach
of the director’s fiduciary duty. Pursuant to indemnification agreements we entered into with each of our directors, we are further
required to indemnify our directors to the fullest extent permitted under Delaware law and our bylaws; provided that each such director
shall enjoy the greater of (i) the advancement and indemnification rights permitted under our certificate of incorporation and bylaws
for directors and officers as of the date of such indemnification agreement or (ii) the benefits so afforded by amendments thereto.
Item 16.
Exhibits.
The
following exhibits are filed with this Registration Statement.
|
*
|
Filed
herewith.
|
|
**
|
To be filed by amendment.
|
|
***
|
If
applicable, to be filed by an amendment or as an exhibit to a report pursuant to section
13(a) or section 15(d) of the Exchange Act and incorporated by reference
|
|
+
|
To
be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
|
|
(1)
|
Incorporated
by reference to Exhibit 2.1 to MICT’s Current Report on Form 8-K, filed with the Securities
and Exchange Commission (the “Commission) in April 20, 2020.
|
|
(2)
|
Incorporated
by reference to Exhibit 3.1 to MICT’s Report on Form 10-K for the year ended December
31, 2020 with the Commission on March 31, 2021.
|
|
(3)
|
Incorporated
by reference to Exhibit 3.5 to MICT’s Amendment No. 2 to its Registration Statement
on Form S-1 (File No. 333-185470), filed with the Commission on March 18, 2013.
|
|
(4)
|
Incorporated
by reference to Exhibit 4.1 of MICT’s Current Report on Form 8-K, filed with the Commission
on March 4, 2021.
|
|
(5)
|
Incorporated
by reference to Exhibit 4.2 to MICT’s Current Report on Form 8-K, filed with the Commission
on March 4, 2021.
|
Item 17.
Undertakings.
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the 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
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however ,
that paragraphs (1)(i), (1)(ii) and (1)(iii) 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 Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first
use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 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:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability of the registrant under the Securities Act
of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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.
(7)
The undersigned registrant hereby undertakes 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.
(8)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
(9)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Bothell, State of Washington, on this 17th day of May, 2021.
|
|
MICT, INC.
|
|
|
|
|
|
/s/ Darren
Mercer
|
|
|
Name:
|
Darren
Mercer
|
|
|
Title:
|
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Darren Mercer and
Moran Amran and each of them, with full power of substitution, such person’s true and lawful attorneys-in-fact and agents for such
person, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and
each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on
behalf of the Registrant in the capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Darren
Mercer
|
|
Chief
Executive Officer & Chairman of the Board
|
|
May
17, 2021
|
|
Darren
Mercer
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
/s/ Moran
Amran
|
|
Controller
|
|
May
17, 2021
|
|
Moran
Amran
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
/s/ John
M. Scott
|
|
Vice Chairman of the Board
of Directors
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|
May
17, 2021
|
|
John
M. Scott
|
|
|
|
|
|
|
|
/s/ Chezy
(Yihezkel) Ofir
|
|
Director
|
|
May
17, 2021
|
|
Chezy
(Yehezkel) Ofir
|
|
|
|
|
|
|
|
/s/ Robert
Benton
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|
Director
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|
May
17, 2021
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|
Robert
Benton
|
|
|
II-5
Exhibit
4.9
MICT,
INC., as
ISSUER
and
[ ],
as
INDENTURE
TRUSTEE
INDENTURE
Dated
as of [ ]
TABLE
OF CONTENTS
|
|
|
Page
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|
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
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|
|
|
|
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Section 1.01
|
Definitions
|
1
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|
Section 1.02
|
Other Definitions
|
4
|
|
Section 1.03
|
Incorporation by Reference of Trust Indenture
Act
|
4
|
|
Section 1.04
|
Rules of Construction
|
5
|
|
|
|
|
|
ARTICLE II THE SECURITIES
|
5
|
|
|
|
|
|
Section 2.01
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Issuable in Series
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5
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|
Section 2.02
|
Establishment of Terms of Series of
Securities
|
5
|
|
Section 2.03
|
Execution and Authentication
|
7
|
|
Section 2.04
|
Registrar and Paying Agent
|
8
|
|
Section 2.05
|
Paying Agent to Hold Money in Trust
|
8
|
|
Section 2.06
|
Holder Lists
|
8
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|
Section 2.07
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Transfer and Exchange
|
8
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|
Section 2.08
|
Mutilated, Destroyed, Lost and Stolen Securities
|
9
|
|
Section 2.09
|
Outstanding Securities
|
9
|
|
Section 2.10
|
Treasury Securities
|
9
|
|
Section 2.11
|
Temporary Securities
|
10
|
|
Section 2.12
|
Cancellation
|
10
|
|
Section 2.13
|
Defaulted Interest
|
10
|
|
Section 2.14
|
Global Securities
|
10
|
|
Section 2.15
|
CUSIP Numbers
|
11
|
|
|
|
|
|
ARTICLE III REDEMPTION
|
12
|
|
|
|
|
|
Section 3.01
|
Notice to Trustee
|
12
|
|
Section 3.02
|
Selection of Securities to be Redeemed
|
12
|
|
Section 3.03
|
Notice of Redemption
|
12
|
|
Section 3.04
|
Effect of Notice of Redemption
|
13
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|
Section 3.05
|
Deposit of Redemption Price
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13
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|
Section 3.06
|
Securities Redeemed in Part
|
13
|
|
|
|
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ARTICLE IV COVENANTS
|
13
|
|
|
|
|
|
Section 4.01
|
Payment of Principal and Interest
|
13
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|
Section 4.02
|
SEC Reports
|
13
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|
Section 4.03
|
Compliance Certificate
|
13
|
|
Section 4.04
|
Stay, Extension and Usury Laws
|
13
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|
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ARTICLE V SUCCESSORS
|
14
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|
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Section 5.01
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When Company May Merge, Etc.
|
14
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Section 5.02
|
Successor Corporation Substituted
|
14
|
|
ARTICLE VI DEFAULTS AND REMEDIES
|
14
|
|
|
|
|
|
Section 6.01
|
Events of Default
|
14
|
|
Section 6.02
|
Acceleration of Maturity; Rescission and
Annulment
|
15
|
|
Section 6.03
|
Collection of Indebtedness and Suits for
Enforcement by Trustee
|
16
|
|
Section 6.04
|
Trustee May File Proofs of Claim
|
16
|
|
Section 6.05
|
Trustee May Enforce Claims Without Possession
of Securities
|
17
|
|
Section 6.06
|
Application of Money Collected
|
17
|
|
Section 6.07
|
Limitation on Suits
|
17
|
|
Section 6.08
|
Unconditional Right of Holders to Receive
Principal and Interest
|
18
|
|
Section 6.09
|
Restoration of Rights and Remedies
|
18
|
|
Section 6.10
|
Rights and Remedies Cumulative
|
18
|
|
Section 6.11
|
Delay or Omission Not Waiver
|
18
|
|
Section 6.12
|
Control by Holders
|
18
|
|
Section 6.13
|
Waiver of Past Defaults
|
19
|
|
Section 6.14
|
Undertaking for Costs
|
19
|
|
|
|
|
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ARTICLE VII TRUSTEE
|
19
|
|
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|
|
Section 7.01
|
Duties of Trustee
|
19
|
|
Section 7.02
|
Rights of Trustee
|
20
|
|
Section 7.03
|
Individual Rights of Trustee
|
21
|
|
Section 7.04
|
Trustee’s Disclaimer
|
21
|
|
Section 7.05
|
Notice of Defaults
|
22
|
|
Section 7.06
|
Reports by Trustee to Holders
|
22
|
|
Section 7.07
|
Compensation and Indemnity
|
22
|
|
Section 7.08
|
Replacement of Trustee
|
22
|
|
Section 7.09
|
Successor Trustee by Merger, Etc.
|
23
|
|
Section 7.10
|
Eligibility; Disqualification
|
23
|
|
Section 7.11
|
Preferential Collection of Claims Against
Company
|
23
|
|
|
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|
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
|
23
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|
|
|
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|
Section 8.01
|
Satisfaction and Discharge of Indenture
|
23
|
|
Section 8.02
|
Application of Trust Funds; Indemnification
|
24
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|
Section 8.03
|
Legal Defeasance of Securities of any Series
|
25
|
|
Section 8.04
|
Covenant Defeasance
|
26
|
|
Section 8.05
|
Repayment to Company
|
27
|
|
Section 8.06
|
Reinstatement
|
27
|
|
ARTICLE IX AMENDMENTS AND WAIVERS
|
27
|
|
|
|
|
|
Section 9.01
|
Without Consent of Holders
|
27
|
|
Section 9.02
|
With Consent of Holders
|
28
|
|
Section 9.03
|
Limitations
|
28
|
|
Section 9.04
|
Compliance with Trust Indenture Act
|
29
|
|
Section 9.05
|
Revocation and Effect of Consents
|
29
|
|
Section 9.06
|
Notation on or Exchange of Securities
|
29
|
|
Section 9.07
|
Trustee Protected
|
29
|
|
|
|
|
|
ARTICLE X MISCELLANEOUS
|
30
|
|
|
|
|
Section 10.01
|
Trust Indenture Act Controls
|
30
|
|
Section 10.02
|
Notices
|
30
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|
Section 10.03
|
Communication by Holders with Other Holders
|
30
|
|
Section 10.04
|
Certificate and Opinion as to Conditions
Precedent
|
30
|
|
Section 10.05
|
Statements Required in Certificate or Opinion
|
31
|
|
Section 10.06
|
Rules by Trustee and Agents
|
31
|
|
Section 10.07
|
Legal Holidays
|
31
|
|
Section 10.08
|
No Recourse Against Others
|
31
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|
Section 10.09
|
Counterparts
|
31
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|
Section 10.10
|
Governing Laws
|
32
|
|
Section 10.11
|
No Adverse Interpretation of Other Agreements
|
32
|
|
Section 10.12
|
Successors
|
32
|
|
Section 10.13
|
Severability
|
32
|
|
Section 10.14
|
Table of Contents, Headings, Etc.
|
32
|
|
Section 10.15
|
Securities in a Foreign Currency
|
32
|
|
Section 10.16
|
U.S.A. Patriot Act
|
32
|
|
Section 10.17
|
Waiver of Jury Trial
|
32
|
|
|
|
|
|
ARTICLE XI SINKING FUNDS
|
33
|
|
|
|
|
|
Section 11.01
|
Applicability of Article
|
33
|
|
Section 11.02
|
Satisfaction of Sinking Fund Payments with
Securities
|
33
|
|
Section 11.03
|
Redemption of Securities for Sinking Fund
|
33
|
MICT,
INC.
Reconciliation
and tie between Trust Indenture Act of 1939 and
Indenture,
dated as of .
|
Section 310 (a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
NOT APPLICABLE
|
|
(a)(4)
|
NOT APPLICABLE
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.10
|
|
Section 311 (a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
NOT APPLICABLE
|
|
Section 312 (a)
|
2.06
|
|
(b)
|
10.03
|
|
(c)
|
10.03
|
|
Section 313 (a)
|
7.06
|
|
(b)(1)
|
7.06
|
|
(b)(2)
|
7.06
|
|
(c)(1)
|
7.06
|
|
(d)
|
7.06
|
|
Section 314 (a)
|
4.02, 10.05
|
|
(b)
|
NOT APPLICABLE
|
|
(c)(1)
|
10.04
|
|
(c)(2)
|
10.04
|
|
(c)(3)
|
NOT APPLICABLE
|
|
(d)
|
NOT APPLICABLE
|
|
(e)
|
10.05
|
|
(f)
|
NOT APPLICABLE
|
|
Section 315 (a)
|
7.01
|
|
(b)
|
7.05
|
|
(c)
|
7.01
|
|
(d)
|
7.01
|
|
(e)
|
6.14
|
|
Section 316 (a)
|
2.10
|
|
(a)(1)(a)
|
6.12
|
|
(a)(1)(b)
|
6.13
|
|
(b)
|
6.08
|
|
Section 317 (a)(1)
|
6.03
|
|
(a)(2)
|
6.04
|
|
(b)
|
2.05
|
|
Section 318 (a)
|
10.01
|
INDENTURE,dated
as of [ ], between MICT, Inc., a Delaware corporation (“Company”), and [ ], as trustee (“Trustee”).
Each
party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.01
Definitions.
“Additional
Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are
owing to such Holders, as calculated by the Company.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”), as used with respect to any person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar or Paying Agent.
“Applicable
Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein,
the rules and procedures of DTC or any successor Depositary, in each case to the extent applicable to such transaction and as
in effect from time to time.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have
been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect
on the date of the certificate and delivered to the Trustee.
“Business
Day” means any day other than a Saturday, Sunday or other day on which banking institutions are authorized or required
by law, regulation or executive order to close or be closed in the State of New York.
“Capital
Interests” means any and all shares, interests, participations, rights or other equivalents (however designated) of
capital stock, including, without limitation, with respect to partnerships, partnership interests (whether general or limited)
and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company
Order” means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s
principal executive officer, principal financial officer or principal accounting officer.
“Company
Request” means a written request signed in the name of the Company by its Chief Executive Officer or Chief Financial
Officer and delivered to the Trustee.
“Corporate
Trust Office” means the address of the Trustee specified in Section 10.02, or such other address as to which the
Trustee may give notice to the Holders and the Company.
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or part in the form of one or more Global
Securities, the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency
registered under the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with
respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount
Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars”
and “$” means the currency of The United States of America.
“DTC”
means the Depository Trust Company, a New York corporation.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Foreign
Currency” means any currency or currency unit issued by a government other than the government of The United States
of America.
“Foreign
Government Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency,
(i) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation
by such government, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Standards Board or in such other statements by such other entity as have been approved by a significant segment
of the accounting profession.
“Global
Security” or “Global Securities” means a Security or Securities, as the case may be, in the form
established pursuant to Section 2.02 evidencing all or part of a Series of Securities, issued to the Depositary for
such Series or its nominee, and registered in the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity means interest payable after Maturity.
“Maturity,”
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security
or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, Chief Financial Officer, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Opinion
of Counsel” means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts
in respect of, the Security.
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office with direct responsibility for the administration
of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this
Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company
created pursuant to Sections 2.01 and 2.02 hereof.
“Stated
Maturity” means when used with respect to any Security or any installment of principal thereof or interest thereon,
the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal
or interest is due and payable.
“Subsidiary”
means, with respect to any person, any corporation, association or other business entity of which more than 50% of the total voting
power of shares of Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof or, in the case of a partnership, more than 50% of the partners’ Capital Interests
(considering all partners’ Capital Interests as a single class), is at the time owned or controlled, directly or indirectly,
by such person or one or more of the other Subsidiaries of such person or combination thereof.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture and
the rules and regulations promulgated thereunder; provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each
person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with
respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S.
Government Obligations” means securities which are (i) direct obligations of The United States of America for the
payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by The United States of America, and which are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation evidenced by such depository receipt.
Section 1.02
Other Definitions.
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TERM
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Defined in Section
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Bankruptcy Law
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6.01
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Custodian
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6.01
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Event of Default
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6.01
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Legal Holiday
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10.07
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mandatory sinking fund payment
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11.01
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Market Exchange Rate
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10.15
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optional sinking fund payment
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11.01
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Paying Agent
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2.04
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Registrar
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2.04
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Successor Person
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5.01
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Section 1.03
Incorporation by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All
other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC
rule under the TIA and not otherwise defined herein are used herein as so defined.
Section 1.04
Rules of Construction.
Unless
the context otherwise requires:
(a)
a term has the meaning assigned to it;
(b)
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c)
references to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting
principles in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d)
“or” is not exclusive;
(e)
words in the singular include the plural, and in the plural include the singular; and
(f)
provisions apply to successive events and transactions.
ARTICLE II
THE
SECURITIES
Section 2.01
Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as
may be set forth or determined in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate
detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities
of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing
the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities
may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably
entitled to the benefits of the Indenture.
Section 2.02
Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of Subsection 2.02(a) and either as to such Securities
within the Series or as to the Series generally in the case of Subsections 2.02(b) through 2.02(s)) by or pursuant to
a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture or an Officers’
Certificate:
(a)
the form and title of the Series (which shall distinguish the Securities of that particular Series from the Securities
of any other Series);
(b)
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will
be issued;
(c)
any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the Series pursuant to Sections 2.07, 2.08, 2.11, 3.06 or 9.06);
(d)
the date or dates on which the principal of the Securities of the Series is payable;
(e)
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities
of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or
dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any
interest payment date;
(f)
the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where
the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to
or upon the Company in respect of the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means;
(g)
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities
of the Series may be redeemed, in whole or in part, at the option of the Company;
(h)
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(i)
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company
at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
(j)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(k)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(l)
the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and the agency or
organization, if any, responsible for overseeing such composite currency;
(m)
the provisions, if any, relating to any security provided for the Securities of the Series;
(n)
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.02;
(o)
any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
(p)
the provisions, if any, relating to conversion of any Securities of such Series, including, if applicable, the securities into
which the Securities are convertible, the conversion price, the conversion period, provisions as to whether conversion will be
mandatory, at the option of the Holders or at the option of the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion if such Series of Securities are redeemed;
(q)
whether the Securities of such Series will be senior debt securities or subordinated debt securities and, if applicable,
a description of the subordination terms thereof;
(r)
any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities
of such Series if other than those appointed herein; and
(s)
any other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it
applies to such Series).
All
Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’
Certificate referred to above, and, unless otherwise provided in such Board Resolution, a Series may be reopened, without
the consent of the Holders, for increases in the aggregate principal amount of such Series and issuances of additional Securities
of such Series.
Section 2.03
Execution and Authentication. At least one Officer shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security
shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating
agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee shall
at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order
may authorize authentication and delivery pursuant to electronic instructions in PDF from the Company or its duly authorized agent
or agents. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate. The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.02, except as provided in Section 2.02
or 2.08. Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.02)
shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate
establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities
of that Series or of Securities within that Series, (b) an Officers’ Certificate complying with Section 10.04
and (c)(1) an Opinion of Counsel complying with Section 10.04 or (2) an Opinion of Counsel (or reliance letter
with respect to an Opinion of Counsel) that the Securities have been duly authorized, executed and delivered by the Company and
such Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with
its terms. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
Section 2.04
Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place
or places specified with respect to such Series pursuant to Section 2.02, an office or agency where Securities of such
Series may be presented or surrendered for payment (“Paying Agent”), and where Securities of such Series may
be surrendered for registration of transfer or exchange (“Registrar”). The Registrar shall keep a register
with respect to each Series of Securities and of their transfer and exchange. The Company hereby appoints the Trustee as
Paying Agent and Registrar. The Company will give prompt written notice to the Trustee of the name and address, and any change
in the name or address, of each Registrar or Paying Agent. The Company may also from time to time designate one or more co-registrars
or additional paying agents and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligations to maintain a Registrar and a Paying Agent in each place
so specified pursuant to Section 2.02 for Securities of any Series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar
or additional paying agent. The term “Registrar” includes any co-registrar; and the term “Paying Agent”
includes any additional paying agent. The Company hereby appoints the Trustee as the initial Registrar and Paying Agent for each
Series unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time Securities of that Series are
first issued.
Section 2.05
Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing
that the Paying Agent will hold in trust, for the benefit of Holders of any Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee
of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as Paying Agent.
Upon an Event of Default under Section 6.01(d) or (e), the Trustee shall be the Paying Agent.
Section 2.06
Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of each Series of Securities and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten (10) days before each interest
payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Holders of each Series of Securities.
Section 2.07
Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers
and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for
any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.06). Neither the
Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days immediately preceding the delivery of a notice of redemption of Securities
of that Series selected for redemption and ending at the close of business on the day of such delivery, or (b) to register
the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being called for redemption in part.
Section 2.08
Mutilated, Destroyed, Lost and Stolen Securities.
(a)
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated,
destroyed, lost or stolen Security has become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
(b)
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith. Every new Security of any Series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.09
Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected
by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding. If a Security
is replaced pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that
the replaced Security is held by a protected purchaser. If the Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable
on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases
to accrue. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed
to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date
of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
Section 2.10
Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have
concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the
Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series that a Responsible
Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay,
the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date
of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this
Indenture as the definitive Securities.
Section 2.12
Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation in accordance
with its customary procedures. The Company may not issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation.
Section 2.13
Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest at the rate established for the particular Series, if any, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date. The
Company shall fix the special record date and payment date; provided that if no rate for defaulted interest is specified for any
Series of Securities, then the defaulted interest rate shall be the interest rate specified for such Series of Securities. At
least ten (10) days before the special record date, the Company shall deliver to the Trustee and to each Holder of the Series a
notice that states the record date, the related payment date and the amount of interest to be paid. The Company may also pay defaulted
interest in any other lawful manner.
Section 2.14
Global Securities
(a)
Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether
the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary
for such Global Security or Securities.
(b)
Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in
the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary
registered as a clearing agency under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers
to the Trustee an Officers’ Certificate to the effect that such Global Security shall be so exchangeable or (iii) an
Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such
names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
(c)
Except as provided in this Section 2.14(c), a Global Security may not be transferred except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(d)
Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This
Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except
as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”
(e)
Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.
(f)
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02,
payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
(g)
Consents, Declaration and Directions. Except as provided in Section 2.14(g), the Company, the Trustee and any Agent shall
treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security
as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
(h)
The Depositary or its nominee, as registered owner of a Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such owner’s beneficial interest in a Global Security will be shown only
on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee and
such owners of beneficial interests in a Global Security will not be considered the owners or holders thereof. Notwithstanding
any other provision of this Indenture or any Security, where this Indenture or any Global Security provides for notice of any
event (including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such
notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the
Depositary or its designee, including by electronic mail in accordance with applicable Depositary procedures.
Section 2.15
CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in “CUSIP” numbers of which the Company becomes aware.
ARTICLE III
REDEMPTION
Section 3.01
Notice to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the
Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable
and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities
pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of the Series of
Securities to be redeemed.
Section 3.02
Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution,
a supplemental indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be redeemed,
the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate.
The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. Securities
of a Series and portions selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect
to Securities of any Series issuable in other denominations pursuant to Section 2.02(j), the minimum principal denomination
for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called
for redemption also apply to portions of Securities of that Series called for redemption. The Trustee shall not be liable
for the selection made in accordance with this Section 3.02.
Section 3.03
Notice of Redemption.
(a)
Unless otherwise specified for a particular Series by a Board Resolution, a supplemental indenture or an Officers’
Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall deliver notice of redemption
to each Holder whose Securities are to be redeemed. The notice shall identify the Securities of the Series to be redeemed
and shall state:
(i)
the redemption date;
(ii)
the redemption price or the manner of the calculation of the redemption price;
(iii)
the name and address of the Paying Agent;
(iv)
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(v)
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
(vi)
the CUSIP number, if any; and
(vii)
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At
the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided
that the Company shall have delivered to the Trustee, at least five Business Days (or such shorter period as the Trustee may consent
to in writing) before notice of redemption is required to be delivered or caused to be delivered to Holders pursuant to this Section 3.03,
an Officers’ Certificate of the Company requesting that the Trustee give such notice and setting forth the information to
be stated in such notice as provided in the preceding paragraph.
Section 3.04
Effect of Notice of Redemption. Once notice of redemption is delivered as provided in Section 3.03, Securities of
a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption
may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued
interest to the redemption date; provided that installments of interest whose Stated Maturity is on or prior to the redemption
date shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business
on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.05
Deposit of Redemption Price. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, on or before 11:00 a.m., New York City time, on the redemption date, the Company
shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities
to be redeemed on that date.
Section 3.06
Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.01
Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of
Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in
accordance with the terms of such Securities and this Indenture.
Section 4.02
SEC Reports. Any information, documents or other reports that the Company shall file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission;
provided that any such information, documents or reports filed or furnished with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed filed with the Trustee as of the time such information, documents
or reports are filed or furnished via EDGAR.
Section 4.03
Compliance Certificate. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and
conditions hereof (without regard to any period of grace or requirement of notice provided hereunder), and if a Default or Event
of Default shall have occurred, specifying all such Defaults or Events of Default and the nature and status thereof of which they
may have knowledge.
Section 4.04
Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture
or the Securities or any other law that would prohibit or forgive the Company from paying all or any portion of the principal
of, or interest on, the Securities as contemplated in the Indenture, any indenture supplemental thereto relating to the Securities
or the Securities and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE V
SUCCESSORS
Section 5.01
When Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all of its properties and assets to, another person (a “Successor Person”) unless:
(a)
the Company is the surviving corporation or the Successor Person (if other than the Company) is organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under
this Indenture; and
(b)
immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
The
Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this
Indenture.
Section 5.02
Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Company in accordance with Section 5.01, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition
is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor Person has been named as the Company herein; provided, however, that the predecessor
Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and
covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS
AND REMEDIES
Section 6.01
Events of Default.
“Event
of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless
in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall
not have the benefit of said Event of Default or the terms of such Event of Default have been modified or superceded as set forth
in the Board Resolution, supplemental indenture or Officers’ Certificate for such Securities of any Series:
(a)
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of
such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or
with a Paying Agent prior to the expiration of such period of 30 days); or
(b)
default in the payment of principal of any Security of that Series at its Maturity; or
(c)
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty
for which the consequences of nonperformance or breach are addressed elsewhere in this Section 6.01 and other than a covenant
or warranty that has been included in this Indenture solely for the benefit of a Series of Securities other than that Series),
which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding
Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(d)
the Company pursuant to or within the meaning of any Bankruptcy Law:
(i)
commences a voluntary case or proceeding;
(ii)
consents to the entry of an order for relief against it in an involuntary case,
(iii)
consents to the appointment of a Custodian of it or for all or substantially all of its property,
(iv)
makes a general assignment for the benefit of its creditors, or
(v)
makes an admission in writing that it is generally unable to pay its debts as the same become due; or
(e)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is for relief against the Company in an involuntary case,
(ii)
appoints a Custodian of the Company or for all or substantially all of its property, or
(iii)
orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 days; or
(f)
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance with Section 2.02(n).
The
term “Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or state law for the relief
of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
Section 6.02
Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at
the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.01(d) or (e)), then
in every such case the Trustee or the Holders of not less than a majority in principal amount of the outstanding Securities of
that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion
of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all
of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest,
if any, shall become immediately due and payable. If an Event of Default specified in Section 6.01(d) or (e) shall occur,
the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall be
immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. At any time after such
a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article; provided that the Holders of a majority in principal
amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment
of the principal and interest, if any, of Securities of that Series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.13. No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 6.03
Collection of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if:
(a)
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b)
default is made in the payment of principal of any Security at the Maturity thereof,
then
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment
or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys
adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If
an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 6.04
Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive
any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.05
Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 6.06
Application of Money Collected.
Any
money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First:
To the payment of all amounts due the Trustee under Section 7.07; and
Second:
To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest, respectively; and
Third:
To the Company.
Section 6.07
Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b)
the Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such Holder or Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
Section 6.08
Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 6.09
Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10
Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted
by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11
Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.12
Control by Holders. Subject to Section 7.02(f), the Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series,
provided that:
(a)
such direction shall not be in conflict with any rule of law or with this Indenture,
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c)
subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability.
Section 6.13
Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of
any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect
to such Series and its consequences, except a Default (i) in the payment of the principal of or interest on any Security
of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration)
or (ii) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder
of each outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14
Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or
to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or
after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.01
Duties of Trustee.
(a)
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
(b)
Except during the continuance of an Event of Default:
(i)
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(ii)
In the absence of bad faith on its part, the Trustee may conclusively rely and is fully protected, as to the truth of the statements
and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the
Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or
Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall
examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein)
.
(c)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i)
This paragraph does not limit the effect of paragraph (b) of this Section.
(ii)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii)
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities
of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding
Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series.
(d)
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of
this Section.
(e)
The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it
receives indemnity reasonably satisfactory to it against any loss, liability or expense.
(f)
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g)
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
(h)
The rights, privileges, protections, immunities and benefits given to the Trustee, including the right to be indemnified, are
extended to, and shall be enforceable by the Trustee in each of its capacities hereunder and to its agents. The provisions set
forth in paragraphs (a), (b) and (c) of this Section shall apply to the Trustee in each of its capacities hereunder
and its agents.
Section 7.02
Rights of Trustee.
(a)
The Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any document believed by
it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b)
Before the Trustee acts or refrains from acting at the direction of the Company, it may require an Officers’ Certificate.
The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate.
(c)
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due
care. No Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission
by any Depositary.
(d)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within
its rights or powers, provided that the Trustee’s conduct does not constitute negligence or willful misconduct.
(e)
The Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in
reliance thereon.
(f)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by the Trustee to be genuine and to have been signed or delivered by the proper person.
(h)
The Trustee shall not be deemed to have notice of any Default or Event of Default, other than a failure by the Company to make
any payment hereunder when due if the Trustee is the Paying Agent, unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this
Indenture and states that it is a “notice of default.”
(i)
The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(j)
In no event shall the Trustee be responsible or liable for any special, indirect, punitive, incidental or consequential loss or
damage of any kind whatsoever (including, but not limited to, lost profits) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of action.
(k)
Neither the Trustee nor any Agent shall be responsible or liable for any failure or delay in the performance of its obligation
under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage;
epidemic; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications services;
accidents; labor disputes; acts of civil or military authority or governmental action; it being understood that each of the Trustee
and Agents shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as reasonably practicable under the circumstances.
(l)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
Section 7.03
Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.04
Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible
for any statement in the Securities other than its authentication.
Section 7.05
Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and
if it is known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest
on any Security of any Series, the Trustee may withhold the notice if and so long as it in good faith determines that withholding
the notice is in the interests of Holders of that Series.
Section 7.06
Reports by Trustee to Holders. Within 60 days after March 15 in each year, the Trustee shall transmit by deliver
to all Holders, as their names and addresses appear on the register kept by the Registrar a brief report dated as of such March 15,
in accordance with, and to the extent required under, TIA Section 313. A copy of each report at the time of its delivery
to Holders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are
listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.07
Compensation and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s
agents and counsel. The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending
itself) against any loss, liability or expense, including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by it except as set forth in this Section 7.07 in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure
or delay by the Trustee to so notify the Company of any claim for which it may seek indemnity shall not relieve the Company of
its obligations hereunder except to the extent such failure or delay shall have materially prejudiced the Company. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders
and agents of the Trustee. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the
Trustee or by any officer, director, employee, shareholder or agent of the Trustee through the gross negligence or willful misconduct
of any such persons as determined by a final order of a court of competent jurisdiction. When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01(d) or (e) occurs, the expenses and the compensation for
the services are intended to constitute expenses of administration under any insolvency, bankruptcy or similar law. The provisions
of this Section shall survive the resignation or removal of the Trustee and the termination or discharge of this Indenture.
Section 7.08
Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in this Section. The Trustee may resign with respect
to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that
Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one
or more Series if:
(a)
the Trustee fails to comply with Section 7.10;
(b)
the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any insolvency,
bankruptcy or similar law;
(c)
a custodian or public officer takes charge of the Trustee or its property; or
(d)
the Trustee becomes incapable of acting.
If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint
a successor Trustee.
If
a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount
of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien
provided for in Section 7.07, the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it
is acting as Trustee under this Indenture. A successor Trustee shall deliver a notice of its succession to each Holder of each
such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred
by it prior to the date of such replacement.
Section 7.09
Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including administration of this Indenture) to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10
Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1),
(2) and (5) and has a combined capital and surplus of at least $50,000,000. The Trustee shall comply with TIA Section 310(b).
Section 7.11
Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
ARTICLE VIII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section 8.01
Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a)
any of the following shall have occurred:
(i)
no Securities have been issued hereunder;
(ii)
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that
have been replaced or paid) have been delivered to the Trustee for cancellation; or
(iii)
all such Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will
become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company; and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an
amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have
become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may
be;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c)
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07 and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04,
2.05, 2.07, 2.08, 8.01, 8.02 and 8.05 shall survive.
Section 8.02
Application of Trust Funds; Indemnification.
(a)
Subject to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money
and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or
8.04 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting
as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with or received by the Trustee or analogous payments as contemplated by Sections 8.03
or 8.04.
(b)
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c)
The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or Foreign
Government Obligations or money held by it as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale
by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section 8.03
Legal Defeasance of Securities of any Series. Unless this Section 8.03 is otherwise specified, pursuant to Section 2.02(s),
to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness
on all the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer
be in effect (and the Trustee, at the expense of the Company, shall, at Company Request, execute such instruments reasonably requested
by the Company acknowledging the same), except as to:
(a)
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof,
(i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on
the Stated Maturity of such principal or installment of principal or interest, and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such Series; and
(b)
the provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.02, 8.03 and 8.05; and
(c)
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
(d)
with reference to this Section 8.03, the Company shall have deposited or caused to be irrevocably deposited (except as provided
in Section 8.02(c)) with the Trustee as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities
of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates
such installments of interest or principal and such sinking fund payments are due;
(e)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(f)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after such date;
(g)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date
of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will
be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred;
(h)
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
(i)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with; and
(j)
such defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration
thereunder.
Section 8.04
Covenant Defeasance. Unless this Section 8.04 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable
to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with respect to the Securities of any Series with any term, provision or condition set forth
under Sections 4.02, 4.03, and 5.01 as well as any additional covenants specified in a supplemental indenture for such Series of
Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.02 (and the failure to
comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.01)
and the occurrence of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution
or an Officers’ Certificate delivered pursuant to Section 2.02 and designated as an Event of Default shall not constitute
a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
(a)
with reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided
in Section 8.02(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities
of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal
of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates
such installments of interest or principal and such sinking fund payments are due;
(b)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(c)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after such date;
(d)
the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will
not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred;
(e)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied
with; and
(f)
Such defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration
thereunder.
Section 8.05
Repayment to Company. The Trustee and the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal and interest that remains unclaimed for two years, and after such time, Holders entitled to
the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another
person.
Section 8.06
Reinstatement. If the Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities of
any series in accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
under this Indenture with respect to the Securities of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent
is permitted to apply all such money in accordance with Section 8.01; provided, however, that if the Company has made any
payment of principal of, premium (if any) or interest on any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS
AND WAIVERS
Section 9.01
Without Consent of Holders. Unless otherwise specified for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, the Company and the Trustee may amend or supplement this Indenture or the Securities
of one or more Series without the consent of any Holder:
(a)
to evidence the succession of another person to the Company under this Indenture and the Securities and the assumption by any
such Successor Person of the obligations of the Company hereunder and under the Securities;
(b)
to add covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such covenants are expressly being included for the benefit
of such series) or to surrender any right or power herein conferred upon the Company provided such action does not adversely affect
the interests of the Holders;
(c)
to add any additional Events of Default;
(d)
to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form;
(e)
to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights
of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such
Security Outstanding;
(f)
to establish the forms or terms of the Securities of any series issued pursuant to the terms hereof;
(g)
to cure any ambiguity or correct any inconsistency in this Indenture;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
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(i)
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to
qualify this Indenture under the Trust Indenture Act;
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(j)
to provide for uncertificated securities in addition to certificated securities;
(k)
to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of
Securities, provided that such action does not adversely affect the interests of the Holders of Securities of such series or any
other series;
(l)
to conform the Indenture to any Description of Securities for a particular Series of Securities; and
(m)
to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities
may be listed or traded.
Section 9.02
With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental
indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series),
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the Holders of each such Series. Except as provided
in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by
notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such
Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular
form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof.
After a supplemental indenture or waiver under this section becomes effective, the Company shall deliver to the Holders of Securities
affected thereby a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to deliver such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture
or waiver.
Section 9.03
Limitations. Unless otherwise specified for a particular Series by a Board Resolution, a supplemental indenture or an
Officers’ Certificate, without the consent of each Holder affected, an amendment or waiver may not:
(a)
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b)
reduce the rate of or extend the time for payment of interest (including default interest) on any Security;
(c)
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation;
(d)
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e)
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such acceleration);
(f)
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g)
make any change in Sections 6.08, 6.13, or 9.03; or
(h)
waive a redemption payment with respect to any Security.
Section 9.04
Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall
be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.05
Revocation and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective,
a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security
if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the waiver becomes
effective. Any amendment or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver
unless it is of the type described in any of clauses (a) through (h) of Section 9.03. In that case, the amendment
or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder’s Security.
Section 9.06
Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on
any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue
and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
Section 9.07
Trustee Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, in addition to
the documents required by Section 10.04, and (subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that all conditions precedent in this Indenture to the execution of such supplemental indenture, if
any, have been complied with, such supplemental indenture is authorized hereunder, and, that such supplemental indenture is the
valid and legally binding obligation of the Company. The Trustee shall sign all supplemental indentures, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.01
Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.02
Notices.
(a)
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly
given if in writing and delivered in person or mailed by first-class mail or sent by telecopier transmission or electronic transmission
in PDF addressed as follows:
if
to the Company:
MICT,
Inc.
28
West Grand Avenue, Suite 3
Montvale,
New Jersey 07645
Attention:
Controller
Telephone:
(201) 225-0190
if
to the Trustee:
[ ]
(b)
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be delivered to his address shown on the register kept by the Registrar. Failure
to deliver a notice or communication to a Holder of any Series or any defect in it shall not affect its sufficiency with
respect to other Holders of that or any other Series. If a notice or communication is delivered in the manner provided above,
within the time prescribed, it is duly given, whether or not the Holder receives it. If the Company delivers a notice or communication
to Holders, it shall deliver a copy to the Trustee and each Agent at the same time.
(c)
Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Company may,
at the Company’s written request received by the Trustee not fewer than five (5) Business Days prior (or such shorter
period of time as may be acceptable to the Trustee) to the date on which such notice must be given or served, be given or served
by the Trustee in the name of and at the expense of the Company.
Section 10.03
Communication by Holders with Other Holders. Holders of any Series may communicate pursuant to TIA Section 312(b)
with other Holders of that Series or any other Series with respect to their rights under this Indenture or the Securities
of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.04
Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a)
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with; and
(b)
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.05
Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply
with the provisions of TIA Section 314(e) and shall include:
(a)
a statement that the person making such certificate or opinion has read such covenant or condition;
(b)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c)
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.06
Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Holders of one or more
Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.07
Legal Holidays. Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture
hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 10.08
No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Securities.
Section 10.09
Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the
same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
Section 10.10
Governing Laws. This Indenture and the Securities will be governed by, and construed in accordance with, the internal
laws of the State of New York.
Section 10.11
No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.12
Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements
of the Trustee in this Indenture shall bind its successor.
Section 10.13
Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14
Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15
Securities in a Foreign Currency. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate delivered pursuant to Section 2.02 of this Indenture with respect to a particular Series of
Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and,
at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars,
then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For
purposes of this Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is
not available for any reason with respect to such currency, the Company shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one
or more major banks in The City of New York or in the country of issue of the currency in question or such other quotations as
the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount
in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture. All decisions and determinations of the Company regarding the Market Exchange
Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the
absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee and all Holders. The Trustee shall have no duty to calculate or verify the calculations made pursuant to this Section 10.15.
Section 10.16
U.S.A. Patriot Act. The Company acknowledges that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee,
like all financial institutions, and in order to help fight the funding of terrorism and money laundering, is required to obtain,
verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account
with the Trustee. The Company agrees that it will provide the Trustee with such information as it may reasonably request as required
in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 10.17
Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING
OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
ARTICLE XI
SINKING
FUNDS
Section 11.01
Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant
to this Indenture. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is
herein referred to as a “mandatory sinking fund payment” and any other amount provided for by the terms of
Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for
by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.02. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided
for by the terms of the Securities of such Series.
Section 11.02
Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which
such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities,
provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together
with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.02,
the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt
of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount
equal to the cash payment required to be released to the Company.
Section 11.03
Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking
fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting of Securities of that Series pursuant to Section 11.02, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 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 3.03.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections 3.04, 3.05 and 3.06.
[Remainder
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first
above written.
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MICT, INC.
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By:
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/s/ Darren Mercer
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Name:
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Darren Mercer
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Title:
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Chief Executive Officer
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[ ].
as Trustee
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By:
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Name:
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Title:
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[Signature
Page to Indenture]
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