As filed with the U.S. Securities and Exchange
Commission on July 14, 2022
Registration
No. 333-[ ]
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Pop
Culture Group Co., Ltd
(Exact
name of registrant as specified in its charter)
| Cayman
Islands |
|
Not
Applicable |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification Number) |
3rd
Floor, No. 168 Fengqi Road
Jimei
District, Xiamen City, Fujian Province
The
People’s Republic of China
+
86-0592-5968169
(Address
and telephone number of Registrant’s principal executive offices)
Cogency
Global Inc.
122
East 42nd Street, 18th Floor
New
York, NY 10168
800-221-0102
(Name,
address, and telephone number of agent for service)
With
a Copy to:
Ying
Li, Esq.
Guillaume
de Sampigny, Esq.
Hunter
Taubman Fischer & Li LLC
48
Wall Street, Suite 1100
New
York, NY 10005
212-530-2206
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of the registration statement.
If
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, 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.C. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
†The
term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board
to its Accounting Standards Codification after April 5, 2012.
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 that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act, or until this registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
| The
information in this prospectus is not complete and may be changed. We may not sell the securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is
not soliciting any offer to buy these securities in any jurisdiction where such offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED JULY 14, 2022
PROSPECTUS
$200,000,000
of
Class
A Ordinary Shares
Debt
Securities
Warrants
Rights
and
Units
Pop
Culture Group Co., Ltd
We
may, from time to time, in one or more offerings, offer and sell up to $200,000,000 of our Class A ordinary shares, par value $0.001
per share (“Class A Ordinary Shares”), debt securities, warrants, rights, and units, or any combination thereof, together
or separately as described in this prospectus. In this prospectus, references to the term “securities” refers, collectively,
to our Class A Ordinary Shares, debt securities, warrants, rights, and units. 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 the securities
offered, please see “Plan of Distribution” in this prospectus.
This
prospectus provides a general description of the securities we may offer. We will provide the specific terms of the securities offered
in one or more supplements to this prospectus.
We
may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should read this
prospectus, any prospectus supplement, and any free writing prospectus before you invest in any of our securities. The prospectus supplement
and any related free writing prospectus may add, update, or change information contained in this prospectus. You should read carefully
this prospectus, the applicable prospectus supplement, and any related free writing prospectus, as well as the documents incorporated
or deemed to be incorporated by reference, before you invest in any of our securities. This prospectus may not be used to offer or sell
any securities unless accompanied by the applicable prospectus supplement.
Unless
otherwise stated, as used in this prospectus, the terms “we,” “us,” “our,” “Pop Culture Group,”
“our Company,” and the “Company” refer to Pop Culture Group Co., Ltd, an exempted company limited by shares incorporated
under the laws of the Cayman Islands; “Pop Culture HK” refers to Pop Culture (HK) Holding Limited, a Hong Kong corporation
and wholly owned subsidiary of Pop Culture Group; “Heliheng” refers to Heliheng Culture Co., Ltd., a limited liability company
organized under PRC laws and regulations, which company is wholly owned by Pop Culture
HK; “PRC subsidiaries” refers to Heliheng and Xiamen Pop Investment Co., Ltd., a limited liability company organized under
PRC laws and regulations, both of which are subsidiaries of Pop Culture HK; and “the PRC operating entities” refer to Xiamen
Pop Culture Co., Ltd., a limited liability company organized under PRC laws and regulations (“Xiamen Pop Culture” or the “VIE”)
and its subsidiaries. See “Prospectus Summary—Business Overview.”
We
are a holding company incorporated in the Cayman Islands and not a Chinese operating company. As a holding company with no material
operations of our own, we conduct our operations through the VIE and its subsidiaries in mainland China. For accounting purposes, we
control and receive the economic benefits of the business operations of the VIE and its subsidiaries through certain contractual
arrangements (the “VIE Agreements”), which enables us to consolidate the financial results of the VIE and its
subsidiaries in our consolidated financial statements under generally accepted accounting principles in the United States
(“U.S. GAAP”), and the structure involves unique risks to investors. We have evaluated the guidance in Financial
Accounting Standards Board Accounting Standards Codification 810 and determined that we are regarded as the primary beneficiary of
the VIE for accounting purposes. Our securities offered in this offering are securities of Pop Culture Group, the offshore holding
company in the Cayman Islands, instead of securities of the VIE or its subsidiaries in mainland China. The VIE structure provides
contractual exposure to foreign investment in China-based companies where PRC laws and regulations prohibit direct foreign investment in the
operating companies. For a description of the VIE Agreements, see “Prospectus Summary—Our Corporate Structure—The
VIE Agreements.” As a result of our use of the VIE structure, you may never hold equity interests in the VIE or its
subsidiaries.
Our Class A Ordinary Shares are listed on the
Nasdaq Capital Market, or “Nasdaq,” under the symbol “CPOP.” On July 13, 2022, the last reported sale price of
our Class A Ordinary Shares on Nasdaq was $1.58 per share. The aggregate market value of our outstanding Class A Ordinary Shares held
by non-affiliates, or public float, as of July 14, 2022, was approximately $29.1 million, which was calculated based on 18,053,923 Class
A Ordinary Shares held by non-affiliates and the price of $1.61 per share, which was the closing price of our Class A Ordinary Shares
on Nasdaq on July 11, 2022. Pursuant to General Instruction I.B.5 of Form F-3, in no event will we sell our securities in a public
primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains
below $75 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities
pursuant to General Instruction I.B.5 of Form F-3.
Investing
in our securities involves a high degree of risk. Before making an investment decision, please read the information under the heading
“Risk Factors” beginning on page 21 of this prospectus and risk factors set forth in our most recent annual report
on Form 20-F, in other reports incorporated herein by reference, and in an applicable prospectus supplement under the heading “Risk
Factors.”
We
may offer and sell the securities from time to time at fixed prices, at market prices, or at negotiated prices, to or through underwriters,
to other purchasers, through agents, or through a combination of these methods. If any underwriters are involved in the sale of any securities
with respect to which this prospectus or any prospectus supplements are being delivered, the names of such underwriters and any applicable
commissions or discounts will be set forth in the applicable prospectus supplement. The offering price of such securities and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement. See “Plan of Distribution”
elsewhere in this prospectus for a more complete description of the ways in which the securities may be sold.
Because
we do not hold equity interests in the VIE or its subsidiaries, we are subject to risks and uncertainties of the interpretations and
applications of PRC laws and regulations, including regulatory review of overseas listing of companies in mainland
China through special purpose vehicles and the validity and enforcement of the VIE Agreements. We are also subject to the
risks and uncertainties about any future actions of the PRC government in this regard that could disallow the VIE structure, which
would likely result in a material change in our operations, and the value of all the securities we are registering for sale may
depreciate significantly or become worthless. The VIE Agreements have not been tested in a court of law in mainland China as of the
date of this prospectus. See “Risk Factors––Risks Relating to Our Corporate Structure––If the PRC
government determines that the VIE Agreements do not comply with PRC regulations, or if these regulations change or are interpreted
differently in the future, we may be unable to assert our contractual rights over the assets of the VIE, and our securities may
decline in value or become worthless.”
We
are subject to certain legal and operational risks associated with being based in mainland China, which could result in a material
change in the VIE’s operations and/or the value of the securities we are registering for sale, or could significantly limit or
completely hinder our ability to offer or continue to offer securities to investors and cause the value of such securities to
significantly decline or be worthless. PRC laws and regulations governing our current business operations are sometimes vague and
uncertain. Recently, the PRC government adopted a series of regulatory actions and issued statements to regulate business operations
in mainland China with little advance notice, including cracking down on illegal activities in the securities market, adopting new
measures to extend the scope of cybersecurity reviews, and expanding the efforts in anti-monopoly enforcement. Since these
statements and regulatory actions are newly published, however, official guidance and related implementation rules have not
been issued. It is highly uncertain what the potential impact such modified or new laws and regulations will have on the daily
business operations of our subsidiaries and the VIE, our ability to accept foreign investments, and our listing on an U.S. exchange.
The Standing Committee of the National People’s Congress (the “SCNPC”) or PRC regulatory authorities may in the
future promulgate laws, regulations, or implementing rules that require us, our subsidiaries, or the VIE to obtain regulatory
approval from Chinese authorities for listing in the U.S.
As
of the date of this prospectus, we, our subsidiaries, and the PRC operating entities have not been involved in any investigations on
cybersecurity review initiated by any PRC regulatory authority, nor has any of them received any inquiry, notice, or sanction. As confirmed
by our PRC counsel, Jincheng Tongda & Neal Law Firm (“JT&N”), as of the date of this prospectus, we are not subject
to cybersecurity review with the Cyberspace Administration of China, or the CAC, under the Cybersecurity Review Measures that became
effective on February 15, 2022, or if the Security Administration Draft is enacted as proposed, since (i) as companies that host entertainment
events, operate hip-hop related online programs, and provide event planning and execution services and marketing services to corporate
clients, we and the PRC operating entities are unlikely to be classified as critical information infrastructure operators (“CIIOs”)
by the PRC regulatory agencies; (ii) we and the PRC operating entities currently possess personal information of a relatively small number
of users in their business operations, significantly less than the one million user threshold set for a data processing operator applying
for listing on a foreign exchange that may be required to pass such cybersecurity review, and they do not anticipate that they will be
collecting over one million users’ personal information in the foreseeable future; and (iii) since we and the PRC operating entities
are in the hip-hop industry, data processed in their business is unlikely to have a bearing on national security and therefore is unlikely
to be classified as core or important data by the authorities. There remains uncertainty, however, as to how the Cybersecurity Review
Measures and the Security Administration Draft will be interpreted or implemented and whether the PRC regulatory agencies, including
the CAC, may adopt new laws, regulations, rules, or detailed implementation and interpretation related to the Cybersecurity Review Measures
and the Security Administration Draft. See “Risk Factors—Risks Relating to Doing Business in the PRC—Recent greater
oversight by the Cyberspace Administration of China over data security, particularly for companies seeking to list on a foreign exchange,
could adversely impact our business and our offering.”
As
of the date of this prospectus, we, our subsidiaries, and the PRC operating entities have not received any inquiry, notice, warning,
or sanctions regarding our overseas listing from the China Securities Regulatory Commission (the “CSRC”) or any other
PRC governmental authorities. However, on December 24, 2021, the CSRC released the Administrative Provisions of the State Council
Regarding the Overseas Issuance and Listing of Securities by Domestic Enterprises (Draft for Comments) (the “Administrative
Provisions”) and the Measures for the Overseas Issuance of Securities and Listing Record-Filings by Domestic Enterprises
(Draft for Comments) (the “Filing Measures” and, together with the Administrative Provisions, the “Draft Rules
Regarding Overseas Listings”), both of which had a comment period that expired on January 23, 2022. The Administrative
Provisions and the Filing Measures regulate overseas securities offering and listing activities by domestic enterprises in direct or
indirect form. The Administrative Provisions specify that the CSRC has regulatory authority over the “overseas securities
offering and listing by domestic enterprises,” and requires “domestic” enterprises to complete filing procedures
with the CSRC if they wish to list overseas. The Administrative Provisions also contain regulatory red lines for overseas offerings
and listings by “domestic” enterprises. The Filing Measures provide supplementary rules for the Administrative
Provisions by specifying the primary filing procedures for overseas offerings and listing by domestic enterprises. If the
Administrative Provisions and the Filing Measures are fully implemented in the current form, we may be required to file in
accordance with the Filing Measures. As of the date of this prospectus, these drafts have not been formally adopted, and, due to the
lack of detailed guidance or implementation rules, there are still uncertainties regarding the Administrative Provisions and the
Filing Measures. If it is determined in the future that CSRC approval or other procedural requirements are required for this
offering, it is uncertain whether we can or how long it will take us to obtain such approval or complete such procedures. See
“Risk Factors—Risks Relating to Doing Business in the PRC—The Draft Rules Regarding Overseas Listings were
released by the CSRC for public consultation. While such rules have not yet come into effect, the Chinese government may exert more
oversight and control over overseas public offerings conducted by China-based issuers, which could significantly limit or completely
hinder our ability to offer or continue to offer our securities to investors and could cause the value of our securities to
significantly decline or become worthless.”
Since
2021, the Chinese government has strengthened its anti-monopoly supervision, mainly in three aspects: (i) establishing the National Anti-Monopoly
Bureau; (ii) revising and promulgating anti-monopoly laws and regulations, including: the Anti-Monopoly Law of the PRC (amended on June
24, 2022 and to be effective on August 1, 2022), the anti-monopoly guidelines for various industries, and the Detailed Rules for the
Implementation of the Fair Competition Review System; and (iii) expanding the anti-monopoly law enforcement targeting Internet companies
and large enterprises. As of the date of this prospectus, the Chinese government’s recent statements and regulatory actions related
to anti-monopoly concerns have not impacted our or the PRC operating entities’ ability to conduct business, our ability to accept
foreign investments or issue our securities to foreign investors because neither we and our subsidiaries, nor the PRC operating entities
engage in monopolistic behaviors that are subject to these statements or regulatory actions.
As
of the date of this prospectus, our PRC subsidiaries and the PRC operating entities are required to obtain, and have successfully
obtained as required, the following licenses, permissions, and approvals for operations in mainland China: (i) business licenses;
(ii) the Electronic Data Interchange (“EDI”) and Internet Content Provider (“ICP”) Licenses; (iii) the
Commercial Performance License; (iv) the Radio and Television Program Production and Operation Permit; and (v) the filing-for-record
procedures before engaging in non-commercial Internet content service operations. Besides, the PRC operating entities are in the
process of applying for the following licenses, permissions, or approvals, which may be required for their new operations in
mainland China: (i) the Internet Culture Business Operating License; (ii) the Internet Publication License; (iii) the
filing-for-record procedures with the CAC’s filing management system for blockchain information services; and (iv) the
filing-for-record procedures for artworks related business activities with local cultural administrative authorities. However, we
cannot assure you that any of these entities will be able to receive clearance of such compliance requirements in a timely manner,
or at all. Any failure of these entities to fully comply with such compliance requirements may cause our PRC subsidiaries or the PRC
operating entities to be unable to begin their new businesses or operations in mainland China, subject them to fines, relevant new
businesses or operations suspension for rectification, or other sanctions. See “Item 3. Key Information—D. Risk
Factors—Risks Relating to Doing Business in the PRC—If the PRC operating entities fail to obtain or renew any of the
requisite approvals, licenses, or permits applicable to our business, it could materially and adversely affect their business and
results of operations” in our most recent annual report on Form 20-F (the “2021 Annual Report”).
In
addition, all the securities we are registering for sale may be prohibited from trading on a national exchange or over-the-counter under
the Holding Foreign Companies Accountable Act, if the Public Company Accounting Oversight Board (United States) (the “PCAOB”)
is unable to inspect our auditor for three consecutive years beginning in 2021. Our auditor, WWC, P.C., is an independent registered
public accounting firm with the PCAOB, and as an auditor of publicly traded companies in the U.S., is subject to laws in the U.S., pursuant
to which the PCAOB conducts regular inspections to assess its compliance with the applicable professional standards. The PCAOB currently
has access to inspect the working papers of our auditor and our auditor is not subject to the determinations announced by the PCAOB on
December 16, 2021. If trading in our securities is prohibited under the Holding Foreign Companies Accountable Act in the future because
the PCAOB determines that it cannot inspect or fully investigate our auditor at such future time, Nasdaq may determine to delist our
Class A Ordinary Shares. On June 22, 2021, the U.S. Senate passed the Accelerating Holding Foreign Companies Accountable Act, which,
if passed by the U.S. House of Representatives and signed into law, would reduce the period of time for foreign companies to comply with
PCAOB audits to two consecutive years instead of three, thus reducing the time period for triggering the delisting of our Company and
the prohibition of trading in our securities if the PCAOB is unable to inspect our accounting firm at such future time. See “Risk
Factors—Risks Relating to Doing Business in the PRC—Recent joint statement by the SEC and the PCAOB, rule changes by Nasdaq,
and the Holding Foreign Companies Accountable Act all call for additional and more stringent criteria to be applied to emerging market
companies upon assessing the qualification of their auditors. These developments could add uncertainties to our continued listing or
future offerings of our securities in the U.S.”
Cash is transferred among our Company, our subsidiaries,
and the VIE, in the following manners: (i) funds are transferred to Heliheng, our WFOE, from our Company as needed through Pop Culture
HK, our Hong Kong subsidiary, in the form of capital contributions or shareholder loans, as the case may be; (ii) funds may be paid by
the VIE to Heliheng, as service fees according to the VIE Agreements; (iii) dividends or other distributions may be paid by Heliheng,
to our Company through Pop Culture HK; and (iv) Heliheng and the VIE, lend to and borrow from each other from time to time for business
operation purposes. For more details, see “Prospectus Summary—Dividends or Distributions Made to Our Company and U.S. Investors
and Tax Consequences” and “Corporate History and Structure—The VIE Agreements.” As of the date of this prospectus,
our Company, our subsidiaries, and the VIE have not distributed any earnings or settled any amounts owed under the VIE Agreements, nor
do they have any plan to distribute earnings or settle amounts owed under the VIE Agreements in the foreseeable future. As of the date
of this prospectus, none of our subsidiaries or the VIE have made any dividends or distributions to our Company and our Company has not
made any dividends or distributions to our shareholders. We intend to keep any future earnings to finance the expansion of our business,
and we do not anticipate that any cash dividends will be paid in the foreseeable future. To the extent cash in the business is in mainland
China, the funds may not be available to fund operations or for other use outside of mainland China due to interventions in or the imposition
of restrictions and limitations on the ability of our Company, our subsidiaries, or the VIE by the PRC government to transfer cash. See
“Risk Factors—Risks Relating to Our Corporate Structure—To the extent cash in the business is in the PRC, the funds
may not be available to fund operations or for other use outside of the PRC due to interventions in or the imposition of restrictions
and limitations on the ability of our Company, our subsidiaries, or the VIE by the PRC government to transfer cash.” If we determine
to pay dividends on any of our Class A Ordinary Shares or Class B Ordinary Shares in the future, as a holding company, we will be dependent
on receipt of funds from our Hong Kong subsidiary, Pop Culture HK. Pop Culture HK will rely on payments made from Xiamen Pop Culture to
our PRC subsidiary, Heliheng, pursuant to the VIE Agreements, and the distribution of such payments to Pop Culture HK. The Company’s
management is directly supervising cash management. Our finance department is responsible for establishing the cash management policies
and procedures among our subsidiaries and departments and the PRC operating entities. Each subsidiary, department, or PRC operating entity
initiates a cash request by putting forward a cash demand plan, which explains the specific amount and timing of cash requested, and submitting
it to designated management members of the Company, based on the amount and the use of cash requested. The designated management member
examines and approves the allocation of cash based on the sources of cash and the priorities of the needs, and submit it to the cashier
specialists of our finance department for a second review. Other than the above, we currently do not have other cash management policies
or procedures that dictate how funds are transferred. During the six months ended December 31, 2021 and the fiscal years ended June 30,
2021, 2020, and 2019, cash transfers and transfers of other assets between Pop Culture Group, its subsidiaries, and the VIE were as follows:
in July 2020, Pop Culture Group transferred approximately $600,000 to its subsidiary in Hong Kong, which in turn transferred approximately
$599,000 to its PRC subsidiary; and in July 2021, Pop Culture Group transferred approximately $7,681,000 of the net proceeds from our
initial public offering to its Hong Kong subsidiary, which in turn transferred approximately $7,649,000 to its PRC subsidiary. See “Prospectus
Summary—Asset Transfers between Our Company, Our Subsidiaries, and the VIE,” “Prospectus Summary—Selected Condensed
Consolidated Financial Schedule of Pop Culture Group and its Subsidiaries and the VIE,” and our unaudited condensed consolidated
interim financial statements for the six months ended December 31, 2021 and our audited consolidated financial statements in the 2021
Annual Report.
Neither
the U.S. Securities and Exchange Commission nor any state securities commission nor any other regulatory body has approved or disapproved
of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”)
utilizing a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell the securities
described in this prospectus in one or more offerings, up to a total offering amount of $200,000,000.
This
prospectus provides you with a general description of the securities we may offer. This prospectus and any accompanying prospectus supplement
do not contain all of the information included in the registration statement. We have omitted parts of the registration statement in
accordance with the rules and regulations of the SEC. Statements contained in this prospectus and any accompanying prospectus supplement
about the provisions or contents of any agreement or other documents are not necessarily complete. If the SEC rules and regulations
require that an agreement or other document be filed as an exhibit to the registration statement, please see that agreement or document
for a complete description of these matters. This prospectus may be supplemented by a prospectus supplement that may add, update, or
change information contained or incorporated by reference in this prospectus. You should read both this prospectus and any prospectus
supplement or other offering materials together with additional information described under the headings “Where You Can Find Additional
Information” and “Incorporation of Documents by Reference.”
Each
time we sell securities under this shelf registration, we will provide a prospectus supplement that will contain certain specific information
about the terms of that offering, including a description of any risks related to the offering. A prospectus supplement may also add,
update, or change information contained in this prospectus (including documents incorporated herein by reference). If there is any inconsistency
between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus
supplement. The registration statement we filed with the SEC includes exhibits that provide more details on the matters discussed in
this prospectus. You should read this prospectus and the related exhibits filed with the SEC and the accompanying prospectus supplement
together with additional information described under the headings “Incorporation of Documents by Reference” before investing
in any of the securities offered.
The
information in this prospectus is accurate as of the date on the front cover. Information incorporated by reference into this prospectus
is accurate as of the date of the document from which the information is incorporated. You should not assume that the information contained
in this prospectus is accurate as of any other date.
You
should rely only on the information provided or incorporated by reference in this prospectus or in the prospectus supplement. We have
not authorized anyone to provide you with additional or different information. This document may only be used where it is legal to sell
these securities.
As
permitted by SEC rules and regulations, the registration statement of which this prospectus forms a part includes additional information
not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at its website or
at its offices described below under “Where You Can Find Additional Information.”
COMMONLY
USED DEFINED TERMS
Unless
otherwise indicated or the context requires otherwise, references in this prospectus or in a prospectus supplement to:
| ● | “China”
or the “PRC” are to the People’s Republic of China; |
| ● | “Class
A Ordinary Shares” are to Class A ordinary shares of Pop Culture Group, par value $0.001
per share; |
| ● | “Class
B Ordinary Shares” are to Class B ordinary shares of Pop Culture Group, par value $0.001
per share; |
| ● | “Exchange
Act” are to the Securities Exchange Act of 1934, as amended; |
| ● | “fiscal
year” are to the period from July 1 to June 30 of the year; |
| ● | “mainland
China” are to the mainland China of the PRC, excluding Taiwan and the special administrative
regions of Hong Kong and Macau for the purposes of this prospectus only; |
| ● | “PRC
laws and regulations” are to the laws and regulations of mainland China; |
| ● | “RMB”
or “Renminbi” are to the legal currency of mainland China; |
| ● | “Sarbanes-Oxley
Act” are to the Sarbanes-Oxley Act of 2002; |
| ● | “Securities
Act” are to the Securities Act of 1933, as amended; |
| ● | “U.S.
dollars,” “$,” and “dollars” are to the legal currency of the
United States; |
| ● | “WFOE”
are to wholly foreign-owned enterprise; and |
| ● | “Xiamen
Pop Culture Shareholders” are to Zhuoqin Huang, Weiyi Lin, Rongdi Zhang, Chunxiao Cui,
Xiayu Cui, Junlong He, Yu Huang, Azhen Lin, and Wuyang Chen, who collectively hold 100% of
the equity interests in Xiamen Pop Culture. |
The
PRC operating entities conduct their business using RMB. Our consolidated financial statements are presented in U.S. dollars. In this
prospectus, we refer to assets, obligations, commitments, and liabilities in our consolidated financial statements in U.S. dollars. These
dollar references are based on the exchange rate of RMB to U.S. dollars, determined as of a specific date or for a specific period. Changes
in the exchange rate will affect the amount of our obligations and the value of our assets in terms of U.S. dollars which may result
in an increase or decrease in the amount of our obligations (expressed in dollars) and the value of our assets, including accounts receivable
(expressed in dollars).
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, an applicable prospectus supplement, and our SEC filings that are incorporated by reference into this prospectus contain
or incorporate by reference forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act. All statements other than statements of historical fact are “forward-looking statements,” including
any projections of earnings, revenue or other financial items, any statements of the plans, strategies, and objectives of management
for future operations, any statements concerning proposed new projects or other developments, any statements regarding future economic
conditions or performance, any statements of management’s beliefs, goals, strategies, intentions, and objectives, and any statements
of assumptions underlying any of the foregoing. The words “believe,” “anticipate,” “estimate,” “plan,”
“expect,” “intend,” “may,” “could,” “should,” “potential,” “likely,”
“projects,” “continue,” “will,” and “would” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. Forward-looking statements reflect
our current views with respect to future events, are based on assumptions, and are subject to risks and uncertainties. We cannot guarantee
that we actually will achieve the plans, intentions, or expectations expressed in our forward-looking statements and you should not place
undue reliance on these statements. There are a number of important factors that could cause our actual results to differ materially
from those indicated or implied by forward-looking statements. These important factors include those discussed under the heading “Risk
Factors” contained or incorporated by reference in this prospectus and in the applicable prospectus supplement and any free writing
prospectus we may authorize for use in connection with a specific offering. These factors and the other cautionary statements made in
this prospectus should be read as being applicable to all related forward-looking statements whenever they appear in this prospectus.
Except as required by law, we undertake no obligation to update publicly any forward-looking statements, whether as a result of new information,
future events, or otherwise.
Prospectus
Summary
Our
Corporate Structure
We
are a holding company incorporated in the Cayman Islands and not a Chinese operating company. As a holding company with no material
operations of our own, we conduct our operations through the VIE and its subsidiaries in mainland China. The VIE Agreements were
entered into by and among Heliheng, Xiamen Pop Culture, and the Xiamen Pop Culture Shareholders and include the Exclusive Services
Agreement, Share Pledge Agreement, Exclusive Option Agreement, Shareholders’ Powers of Attorney, and Spousal Consents. For a
description of the VIE Agreements, see “—The VIE Agreements.” For accounting purposes, we control and receive the
economic benefits of the business operations of the VIE and its subsidiaries through the VIE Agreements, which enables us to
consolidate the financial results of the VIE and its subsidiaries in our consolidated financial statements under U.S. GAAP, and the
structure involves unique risks to investors. Our securities offered in this offering are securities of Pop Culture Group, the
offshore holding company in the Cayman Islands, instead of securities of the VIE or its subsidiaries in mainland China. The VIE
structure provides contractual exposure to foreign investment in China-based companies where PRC laws and regulations prohibit direct foreign
investment in the operating companies. As a result of our use of the VIE structure, you may never hold equity interests in the VIE
or its subsidiaries.
The
following diagram illustrates our corporate structure, including our subsidiaries and the PRC operating entities, as of the date of this
prospectus:
Notes:
All percentages reflect the voting ownership interests instead of the equity interests held by each of our shareholders given that each
holder of Class B Ordinary Shares is entitled to seven votes per one Class B Ordinary Share and each holder of Class A Ordinary Shares
is entitled to one vote per one Class A Ordinary Share.
| |
(1) |
Represents
5,763,077 Class B Ordinary Shares indirectly held by Zhuoqin Huang, the 100% owner of Joya Enterprises Limited, as of the date of
this prospectus. |
| |
|
|
| |
(2) |
Represents
233,000 Class A Ordinary Shares indirectly held by Weiyi Lin, the 100% owner of Victory Quest Industries Limited, as of the date
of this prospectus. |
| |
(3) |
Represents
an aggregate of 755,089 Class A Ordinary Shares held by five shareholders of Pop Culture Group, each one of which holds less than
5% of our voting ownership interests, as of the date of this prospectus. |
| |
(4) |
As
of the date of this prospectus, Xiamen Pop Culture is held by Zhuoqin Huang as to 61.58%, Weiyi Lin as to 10.02%, Rongdi Zhang as
to 9.10%, Chunxiao Cui as to 6.11%, Xiayu Cui as to 6.11%, Junlong He as to 4.42%, Yu Huang as to 2.42%, Azhen Lin as to 0.12%, and
Wuyang Chen as to 0.12%, respectively, together holding 100% of the shares. |
| |
|
|
| |
(5) |
Xiamen
Sikai Culture Media Co., Ltd., an unrelated third party, holds 49% of the equity interests in Xiamen Pop Sikai Interactive Technology
Co., Ltd. (“Pop Sikai”). |
| |
|
|
| |
(6) |
Fujian
Zhongshi Communication Co., Ltd., Wenxiu Yu, and Bo Lan, three unrelated third parties, holds 49% of the equity interests in Zhongpu
Shuyuan (Xiamen) Digital Technology Co., Ltd. (“Zhongpu Shuyuan”). |
| |
|
|
| |
(7) |
Shaobing
Jiang, an unrelated third party, holds 30% of the equity interests in Xiamen Pop Shuzhi Culture Communication Co., Ltd. (“Xiamen
Shuzhi”). |
| |
|
|
| |
(8) |
Fuzhou
Xinsiyu Culture Communication Co., Ltd., an unrelated third party, holds 49% of the equity interests in Fujian Shuzhi Fuxin Exhibition
Co., Ltd. (“Fujian Shuzhi”). |
| |
|
|
| |
(9) |
Shenzhen
HipHopJust Information Technology Co., Ltd. and Zhaowei Wu, two unrelated third parties, collectively hold 40% of the equity interests
in Shenzhen Jam Box Technology Co., Ltd. (“Shenzhen Jam Box”). |
Investors
are purchasing securities of Pop Culture Group, the offshore holding company in the Cayman Islands, instead of securities of the PRC
operating entities, Xiamen Pop Culture and its subsidiaries.
The
VIE Agreements
Neither
we nor our subsidiaries own any share in Xiamen Pop Culture or its subsidiaries. Instead, for accounting purposes, we control and receive
the economic benefits of the business operations of the VIE and its subsidiaries through the VIE Agreements, which enables us to consolidate
the financial results of the VIE and its subsidiaries in our consolidated financial statements under U.S. GAAP. Heliheng, Xiamen Pop
Culture, and the Xiamen Pop Culture Shareholders entered into the VIE Agreements on March 30, 2020, which were amended and restated on
February 19, 2021. The VIE Agreements are designed to provide Heliheng with the power, rights, and obligations to Xiamen Pop Culture
as set forth under the VIE Agreements. We have evaluated the guidance in Financial Accounting Standards Board Accounting Standards Codification
810 and determined that we are regarded as the primary beneficiary of the VIE for accounting purposes, as a result of our direct ownership
in Heliheng and the provisions of the VIE Agreements.
Each
of the VIE Agreements is described in detail below:
Exclusive
Business Cooperation Agreement
Pursuant
to the Exclusive Services Agreement between Xiamen Pop Culture and Heliheng, Heliheng provides Xiamen Pop Culture with technical support,
intellectual services, and other management services relating to its day-to-day business operations and management, on an exclusive basis,
utilizing its advantages in technology, human resources, and information. For services rendered to Xiamen Pop Culture by Heliheng under
the Exclusive Services Agreement, Heliheng is entitled to collect a service fee equal to 100% of the net income of Xiamen Pop Culture,
which is Xiamen Pop Culture’s earnings before tax after deducting relevant costs and reasonable expenses.
The
Exclusive Services Agreement became effective on March 30, 2020, was amended and restated on February 19, 2021, and will remain effective
unless otherwise terminated as required by laws or regulations, or by relevant governmental or regulatory authorities. Nevertheless,
the Exclusive Services Agreement will be terminated after all shares in Xiamen Pop Culture held by the Xiamen Pop Culture Shareholders
and/or all the assets of Xiamen Pop Culture have been legally transferred to Heliheng and/or its designee in accordance with the Exclusive
Option Agreement.
The
Exclusive Services Agreement does not prohibit related party transactions. Our audit committee is required to review and approve in advance
any related party transactions, including transactions involving Heliheng or Xiamen Pop Culture.
Share
Pledge Agreement
Under
the Share Pledge Agreement between Heliheng and the Xiamen Pop Culture Shareholders, together holding 100% of the shares in Xiamen
Pop Culture, the Xiamen Pop Culture Shareholders pledged their shares in Xiamen Pop Culture to Heliheng to guarantee the performance
of Xiamen Pop Culture’s obligations under the Exclusive Services Agreement. Under the terms of the Share Pledge Agreement, in
the event that Xiamen Pop Culture or the Xiamen Pop Culture Shareholders breach their respective contractual obligations under the
Exclusive Services Agreement, Heliheng, as pledgee, will be entitled to certain rights, including, but not limited to, the right to
collect dividends generated by the pledged shares. The Xiamen Pop Culture Shareholders also agreed that upon occurrence of any event
of default, as set forth in the Share Pledge Agreement, Heliheng is entitled to dispose of the pledged shares in accordance with
applicable PRC laws and regulations. The Xiamen Pop Culture Shareholders further agreed not to dispose of the pledged shares or take
any action that would prejudice Heliheng’s interest.
The
Share Pledge Agreement is effective until the full payment of the service fees under the Exclusive Services Agreement and upon termination
of Xiamen Pop Culture’s obligations under the Exclusive Services Agreement, or upon the transfer of shares under the Exclusive
Option Agreement.
The
purposes of the Share Pledge Agreement are to (1) guarantee the performance of Xiamen Pop Culture’s obligations under the Exclusive
Services Agreement and (2) make sure the Xiamen Pop Culture Shareholders do not transfer or assign the pledged shares, or create or allow
any encumbrance that would prejudice Heliheng’s interests without Heliheng’s prior written consent. In the event Xiamen Pop
Culture breaches its contractual obligations under the Exclusive Services Agreement, Heliheng will be entitled to dispose of the pledged
shares in accordance with relevant PRC laws and regulations.
As
of the date of this prospectus, the share pledges under the Share Pledge Agreement have been registered with the competent PRC regulatory
authority.
Exclusive
Option Agreement
Under
the Exclusive Option Agreement, the Xiamen Pop Culture Shareholders, together holding 100% of the shares in Xiamen Pop Culture, irrevocably
granted Heliheng (or its designee) an exclusive option to purchase, to the extent permitted under PRC laws and regulations, once or at multiple times,
at any time, part or all of their shares in Xiamen Pop Culture. The option price is RMB10 or the minimum amount to the extent permitted
under PRC laws and regulations, whichever is lower.
Under
the Exclusive Option Agreement, Heliheng may at any time under any circumstances, purchase or have its designee purchase, at its discretion,
to the extent permitted under PRC laws and regulations, all or part of the Xiamen Pop Culture Shareholders’ shares in Xiamen Pop Culture. The Exclusive
Option Agreement, together with the Share Pledge Agreement, the Exclusive Services Agreement, and the Shareholders’ Powers of Attorney,
enable us to consolidate the financial results of Xiamen Pop Culture and its subsidiaries in our consolidated financial statements under
U.S. GAAP.
The
Exclusive Option Agreement remains effective until all the equity of Xiamen Pop Culture is legally transferred under the name of Heliheng
and/or other entity or individual designated by it, unless terminated earlier by Heliheng with a 30-day prior notice.
Shareholders’
Powers of Attorney
Under
each of the Powers of Attorney, the Xiamen Pop Culture Shareholders authorized Heliheng to act on their behalf as their exclusive agent
and attorney with respect to all rights as shareholders, including but not limited to: (a) attending shareholders’ meetings; (b)
exercising all the shareholder’s rights, including voting, that shareholders are entitled to under PRC laws and regulations and the Articles
of Association, including but not limited to the sale or transfer or pledge or disposition of shares in part or in whole; and (c) designating
and appointing on behalf of shareholders the legal representative, the executive director, supervisor, the chief executive officer, and
other senior management members of Xiamen Pop Culture.
The
Powers of Attorney are irrevocable and continuously valid from the date of execution of the Powers of Attorney, so long as the Xiamen
Pop Culture Shareholders are shareholders of Xiamen Pop Culture.
Spousal
Consents
The
spouses of certain of the Xiamen Pop Culture Shareholders agreed, via a spousal consent, to the execution of the “Transaction Documents”
including: (a) Exclusive Option Agreement entered into with Heliheng and Xiamen Pop Culture; (b) Share Pledge Agreement entered into
with Heliheng; and (c) Powers of Attorney executed by the Xiamen Pop Culture Shareholders, and the disposal of the shares of Xiamen Pop
Culture held by the Xiamen Pop Culture Shareholders and registered in their names.
The
spouses of certain of the Xiamen Pop Culture Shareholders further undertook not to make any assertions in connection with the shares
of Xiamen Pop Culture which are held by the Xiamen Pop Culture Shareholders. The spouses of certain of the Xiamen Pop Culture Shareholders
confirmed that the Xiamen Pop Culture Shareholders can perform, amend, or terminate the Transaction Documents without their authorization
or consent. They undertook to execute all necessary documents and take all necessary actions to ensure appropriate performance of the
agreements.
The
spouses of certain of the Xiamen Pop Culture Shareholders also undertook that if they obtain any share of Xiamen Pop Culture which are
held by the Xiamen Pop Culture Shareholders for any reasons, they will be bound by the Transaction Documents and comply with the obligations
thereunder as shareholders of Xiamen Pop Culture. For this purpose, upon Heliheng’s request, they will sign a series of written
documents in substantially the same format and content as the Transaction Documents and Exclusive Services Agreement (as amended from
time to time).
Risks
Associated with Our Corporate Structure and the VIE Agreements
Because
we do not directly hold equity interests in the VIE and its subsidiaries, we are subject to risks and uncertainties of the
interpretations and applications of PRC laws and regulations, including but not limited to, regulatory review of overseas listing of
companies in mainland China through special purpose
vehicles, and the validity and enforcement of the VIE Agreements. We are also subject to the risks and uncertainties about any
future actions of the PRC government in this regard that could disallow the VIE structure, which would likely result in a material
change in the VIE’s operations, and the value of all the securities we are registering for sale may depreciate significantly
or become worthless. The VIE Agreements have not been tested in a court of law in mainland China as of the date of this
prospectus.
The
VIE Agreements may not be effective as direct ownership in providing operational control. For instance, Xiamen Pop Culture and the Xiamen
Pop Culture Shareholders could breach their VIE Agreements with Heliheng by, among other things, failing to conduct their operations
in an acceptable manner or taking other actions that are detrimental to our interests. The Xiamen Pop Culture Shareholders may not act
in the best interests of our Company or may not perform their obligations under these contracts. Such risks exist throughout the period
in which we intend to operate certain portions of our business through the VIE Agreements with Xiamen Pop Culture. In the event that
Xiamen Pop Culture or the Xiamen Pop Culture Shareholders fail to perform their respective obligations under the VIE Agreements, we may
have to incur substantial costs and expend additional resources to enforce such arrangements. In addition, even if legal actions are
taken to enforce such arrangements, there is uncertainty as to whether the courts of mainland China would recognize or enforce judgments of
U.S. courts against us or such persons predicated upon the civil liability provisions of the securities laws of the United States or
any state. See “Risk Factors—Risks Relating to Our Corporate Structure—If the PRC government determines that the VIE
Agreements do not comply with PRC regulatory restrictions on foreign investment in the relevant industries, or if these regulations or
the interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish our
interests in those operations,” and “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure—The VIE Agreements with Xiamen Pop Culture and the Xiamen Pop Culture Shareholders may not be effective in providing
control over Xiamen Pop Culture” and “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure—Our VIE Agreements are governed by the laws of the PRC and we may have difficulty in enforcing any rights we may have
under these contractual arrangements” in the 2021 Annual Report.
On
December 28, 2021, 13 governmental departments of the PRC, including the CAC, issued the revised Cybersecurity Review Measures, which
became effective on February 15, 2022. The Cybersecurity Review Measures require that an online platform operator which possesses the
personal information of at least one million users must apply for a cybersecurity review by the CAC if it intends to be listed in foreign
countries. Such requirement is reiterated on the Security Administration Draft, which was released by the CAC on November 14, 2021 for
public consultation. As advised by our PRC counsel, JT&N, as of the date of this prospectus, we are not subject to cybersecurity
review or network data security review by the CAC, since (i) as companies that host entertainment events, operate hip-hop related online
programs, and provide event planning and execution services and marketing services to corporate clients, we and the PRC operating entities
are unlikely to be classified as CIIOs by the PRC regulatory agencies; (ii) we and the PRC operating entities currently possess personal
information of a relatively small number of users in our business operations, significantly less than the one million user threshold
set for a data processing operator applying for listing on a foreign exchange that may be required to pass such cybersecurity review,
and we do not anticipate that we will be collecting over one million users’ personal information in the foreseeable future; and
(iii) since we and the PRC operating entities are in the hip-hop industry, data processed in our business is unlikely to have a bearing
on national security and therefore is unlikely to be classified as core or important data by the authorities. There remains uncertainty,
however, as to how the Cybersecurity Review Measures and the Security Administration Draft will be interpreted or implemented and whether
the PRC regulatory agencies, including the CAC, may adopt new laws, regulations, rules, or detailed implementation and interpretation
related to the Cybersecurity Review Measures and the Security Administration Draft. See “Risk Factors—Risks Relating to Doing
Business in the PRC—Recent greater oversight by the Cyberspace Administration of China over data security, particularly for companies
seeking to list on a foreign exchange, could adversely impact our business and our offering.”
In
addition, on December 24, 2021, the CSRC and relevant departments of the State Council issued the Draft Rules Regarding Overseas Listings,
which aim to regulate overseas securities offerings and listings by China-based companies, for public consultation. According to the
Draft Rules Regarding Overseas Listings, among other things, after making initial applications with overseas stock markets for initial
public offerings or listings, or after the completion of issuance of overseas listed securities by the overseas listed issuer, all China-based
companies shall file the required filing materials with the CSRC within three working days. In addition, overseas offerings and listings
may be prohibited for such China-based companies when any of six occasions occur. As of the date of this prospectus, the Draft Rules
Regarding Overseas Listings have been released for public comment only and have not been formally promulgated, and neither we nor any
of the PRC operating entities have been required to complete the filing procedures. There remain, however, uncertainties as to the enactment
or future interpretations and implementations of the Draft Rules Regarding Overseas Listings. See “Risk Factors—Risks Relating
to Doing Business in the PRC—The Draft Rules Regarding Overseas Listings were released by the CSRC for public consultation. While
such rules have not yet come into effect, the Chinese government may exert more oversight and control over overseas public offerings
conducted by China-based issuers, which could significantly limit or completely hinder our ability to offer or continue to offer our
securities to investors and could cause the value of our securities to significantly decline or become worthless.”
In
addition, all of the securities we are offering may be prohibited from trading on a national exchange or over-the-counter under the Holding
Foreign Companies Accountable Act if the PCAOB is unable to inspect our auditor for three consecutive years beginning in 2021. Our auditor,
WWC, P.C., is an independent registered public accounting firm with the PCAOB, and as an auditor of publicly traded companies in the
U.S., is subject to laws in the U.S., pursuant to which the PCAOB conducts regular inspections to assess its compliance with the applicable
professional standards. The PCAOB currently has access to inspect the working papers of our auditor and our auditor is not subject to
the determinations announced by the PCAOB on December 16, 2021. If trading in our Class A Ordinary Shares is prohibited under the Holding
Foreign Companies Accountable Act in the future because the PCAOB determines that it cannot inspect or fully investigate our auditor
at such future time, Nasdaq may determine to delist our Class A Ordinary Shares. On June 22, 2021, the U.S. Senate passed the Accelerating
Holding Foreign Companies Accountable Act, which, if passed by the U.S. House of Representatives and signed into law, would reduce the
period of time for foreign companies to comply with PCAOB audits to two consecutive years instead of three, thus reducing the time period
for triggering the delisting of our Company and the prohibition of trading in our securities if the PCAOB is unable to inspect our accounting
firm at such future time. See “Risk Factors—Risks Relating to Doing Business in the PRC—Recent joint statement by the
SEC and the PCAOB, rule changes by Nasdaq, and the Holding Foreign Companies Accountable Act all call for additional and more stringent
criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors
who are not inspected by the PCAOB. These developments could add uncertainties to our continued listing or future offerings of our securities
in the U.S.”
Business
Overview
We
conduct our business in mainland China through the PRC operating entities. The following description of our business is a
description of the business of the PRC operating entities. See “—Our Corporate Structure—The VIE Agreements”
for a summary of the VIE Agreements.
With
the values of hip-hop culture at their core and the younger generation as their primary target audience, the PRC operating entities host
entertainment events, operate hip-hop related online programs, and provide event planning and execution services and marketing services
to corporate clients. They seek to create value for stakeholders in all parts of the hip-hop ecosystem, from fans to artists, corporate
clients, and sponsors.
The
PRC operating entities have in recent years focused on developing and hosting their own hip-hop events. The PRC operating entities
own an extensive portfolio of intellectual property rights related to hip-hop events, including a stage play, three dance
competitions or events, two cultural and musical festivals, and two promotional parties that feature live hip-hop performances in
karaoke bars or amusement parks to promote hip-hop culture, and they cooperate with music companies and artists to host various
concerts in mainland China; starting from March 2020, the PRC operating entities have been developing and operating hip-hop related
online programs (collectively, “Event Hosting”). The PRC operating entities’ concerts and hip-hop events generated
an aggregate attendance of approximately 203,230 and their online hip-hop programs generated over 156 million views during the six
months ended December 31, 2021. The PRC operating entities’ concerts and hip-hop events generated an aggregate attendance of
159,200, 127,930, and 122,000 during the fiscal years ended June 30, 2021, 2020, and 2019, respectively, and their online hip-hop
programs generated over 314 million and 100 million views during the fiscal years ended June 30, 2021 and 2020, respectively. The
PRC operating entities generate revenue from their Event Hosting business by providing sponsorship packages to advertisers in
exchange for sponsorship fees and by selling tickets for those concerts.
The
PRC operating entities help corporate clients with the design, logistics, and layout of events, coordinate and supervise the actual event
set-up and implementation, and generate revenue through service fees (“Event Planning and Execution”). Their services feature
significant hip-hop elements and cover each aspect of corporate and marketing events, including communication, planning, design, production,
reception, execution, and analysis. During the six months ended December 31, 2021, the PRC operating entities served 11 clients in 23
events with respect to event planning and execution. During the fiscal years ended June 30, 2021, 2020, and 2019, the PRC operating entities
served 24, 16, and 35 clients in 59, 49, and 43 events with respect to event planning and execution, respectively.
The
PRC operating entities provide marketing services, including (i) brand promotion services, such as trademark and logo design, visual
identity system design, brand positioning, brand personality design, and digital solutions, and (ii) other services, primarily advertisement
distribution, to corporate clients for service fees (“Marketing”).
We
believe that the main reason corporate clients hire the PRC operating entities to plan and execute events and provide marketing services
geared towards the younger generation is for their deep understanding of the taste and preferences of this generation.
For
the six months ended December 31, 2021, we had total revenue of $20,148,203 and net income of $4,116,908. Revenue derived from the Event
Hosting business, the Event Planning and Execution business, and the Marketing business accounted for 59%, 33%, and 7% of our total revenue
for the period, respectively.
For the fiscal years ended June 30, 2021, 2020,
and 2019, we had total revenue of $25,526,557, $15,688,080, and $19,031,766, and net income of $4,267,542, $2,625,817, and $3,831,758,
respectively. Revenue derived from the Event Hosting business accounted for 59%, 49%, and 34% of our total revenue for those fiscal years,
respectively. Revenue derived from the Event Planning and Execution business accounted for 36%, 35%, and 52% of our total revenue for
those fiscal years, respectively. Revenue derived from the Marketing business accounted for 5%, 16%, and 14% of our total revenue for
those fiscal years, respectively.
Recent
Development
On December 3, 2021, we incorporated a wholly
owned subsidiary, Pop Culture Global Operations Inc. (“Pop Culture Global”), in California. As of the date of this prospectus,
Pop Culture Global has not been operative, nor has it generated any revenue.
On January 25, 2022, Heliheng and Xiamen Pop Culture
established a subsidiary, Xiamen Pop Investment Co., Ltd. (“Pop Investment”), under PRC laws and regulations. Heliheng holds
60% equity interests in Pop Investment and Xiamen Pop Culture holds 40%. Pop Investment is engaged in cross-border funds management for
the Company.
On March 30, 2022, Xiamen Pop Culture established
a subsidiary, Zhongpu Shuyuan, under PRC laws and regulations. Xiamen Pop Culture holds 51% equity interests in Zhongpu Shuyuan. Zhongpu
Shuyuan is engaged in digital collection and metaverse related business and launched a non-fungible token digital collection trading platform
in China, Shuyuan Meta, on May 3, 2022 for the development, promotion, and distribution of digital collections.
On April 12, 2022, Zhongpu Shuyuan entered into
a share purchase agreement with Mouqing He and Lin Jiang, the two former shareholders of Xiamen Qiqin Technology Co., Ltd. (“Xiamen
Qiqin”), pursuant to which Zhongpu Shuyuan acquired 100% of Xiamen Qiqin’s equity interests. As a result, Xiamen Qiqin became
a wholly owned subsidiary of Zhongpu Shuyuan on April 12, 2022. Xiamen Qiqin is still in the process of exploring its business plan. As
of the date of this prospectus, Xiamen Qiqin has not been operative, nor has it generated any revenue since its acquisition by Zhongpu
Shuyuan.
On April 14, 2022, Xiamen Pop Culture established
a wholly owned subsidiary, Hualiu Digital Entertainment (Beijing) International Culture Media Co., Ltd. (“Hualiu Digital”),
under the PRC laws and regulations. Hualiu Digital is still in the process of exploring its business plan. As of the date of this prospectus,
Hualiu Digital has not been operative, nor has it generated any revenue.
On
May 16, 2022, Guangzhou Shuzhi Culture Communication Co., Ltd. (“Guangzhou Shuzhi”), a wholly owned subsidiary of Xiamen
Pop Culture, established a wholly owned subsidiary, Xiamen Shuzhi, under PRC laws and regulations. Xiamen Shuzhi is still in the process
of exploring its business plan. As of the date of this prospectus, Xiamen Shuzhi has not been operative, nor has it generated any revenue.
On
May 18, 2022, Guangzhou Shuzhi established a subsidiary, Fujian Shuzhi, under PRC laws and regulations. Guangzhou Shuzhi holds 51% equity
interests in Fujian Shuzhi. Fujian Shuzhi is still in the process of exploring its business plan. As of the date of this prospectus,
Fujian Shuzhi has not been operative, nor has it generated any revenue.
On
June 20, 2022, Xiamen Pop Culture established a wholly owned subsidiary, Xiamen Pupu Digital Technology Co., Ltd. (“Pupu Digital”),
under PRC laws and regulations. Pupu Digital is still in the process of exploring its business plan. As of the date of this prospectus,
Pupu Digital has not been operative, nor has it generated any revenue.
COVID-19
Impact
The
COVID-19 pandemic has resulted in the implementation of significant governmental measures, including lockdowns, closures, quarantines,
and travel bans, intended to control the spread of the virus. The Chinese government has ordered quarantines, travel restrictions, and
the temporary closure of stores and facilities. Companies are also taking precautions, such as requiring employees to work remotely,
imposing travel restrictions and temporarily closing businesses.
Since
the PRC operating entities primarily engage in the businesses of hosting events and providing services related to events, their results
of operations and financial condition for the six months ended December 31, 2021 were adversely affected by the spread of COVID-19 as
the Chinese government took a number of actions, including encouraging employees of enterprises to work remotely from home and cancelling
public activities. In particular, at certain periods or in certain cities, all of the offline events the PRC operating entities expected
to host or plan and execute were suspended because governmental authorities-imposed restrictions on large scale in-person gatherings
and the PRC operating entities also suffered a decrease in the marketing business because of the sluggish demand for advertising or marketing
activities, resulting in lower growth rate of revenue and net income from the event planning and execution, and a decrease revenue from
other services, during the six months ended December 31, 2021. The PRC operating entities also experienced difficulties in collecting
accounts receivable during the first half of fiscal 2022.
The
COVID-19 pandemic may continue to materially and adversely affect our business operations and condition and operating results for fiscal
2022, including delays in their execution of offline events, material negative impact on their total revenue, slower collection of accounts
receivable, and additional allowance for doubtful accounts. The extent to which COVID-19 impacts the PRC operating entities’ results
of operations during 2022 will depend on the future developments of the pandemic, including new information concerning the global severity
of and actions taken to contain the pandemic, which are highly uncertain and unpredictable.
Summary
of Risk Factors
Investing
in our securities involves significant risks. You should carefully consider all of the information in this prospectus before making an
investment in our securities. Below please find a summary of the principal risks we face, organized under relevant headings. These risks
are discussed more fully under “Item 3. Key Information—D. Risk Factors” in the 2021 Annual Report and in the section
titled “Risk Factors” beginning on page 21 of this prospectus.
Risks
Relating to Our Corporate Structure (for a more detailed discussion, see “Item 3. Key Information—D. Risk Factors—Risks
Relating to Our Corporate Structure” in the 2021 Annual Report and “Risk Factors—Risks Relating to Our Corporate Structure”
of this prospectus)
Risks
and uncertainties related to our business include, but are not limited to, the following:
| ● | our VIE Agreements with
Xiamen Pop Culture and the Xiamen Pop Culture Shareholders may not be effective in providing control over Xiamen Pop Culture (see
“Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate Structure—Our VIE Agreements with
Xiamen Pop Culture and the Xiamen Pop Culture Shareholders may not be effective in providing control over Xiamen Pop Culture”
on page 3 of the 2021 Annual Report); |
| ● | our
VIE Agreements are governed by the laws of the PRC and we may have difficulty in enforcing any rights we may have under these contractual
arrangements (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate Structure—Our VIE
Agreements are governed by the laws of the PRC and we may have difficulty in enforcing any rights we may have under these contractual
arrangements” on page 3 of the 2021 Annual Report); |
| ● | we
may not be able to consolidate the financial results of Xiamen Pop Culture or such consolidation could materially and adversely affect
our operating results and financial condition (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure— We may not be able to consolidate the financial results of Xiamen Pop Culture or such consolidation could materially
and adversely affect our operating results and financial condition” on page 4 of the 2021 Annual Report); |
| ● | the
VIE Agreements may result in adverse tax consequences (see “Item 3. Key Information—D. Risk Factors—Risks Relating
to Our Corporate Structure—The VIE Agreements may result in adverse tax consequences” on page 4 of the 2021 Annual Report); |
| ● | the
Xiamen Pop Culture Shareholders have potential conflicts of interest with our Company, which may adversely affect our business and financial
condition (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate Structure—The Xiamen
Pop Culture Shareholders have potential conflicts of interest with our Company which may adversely affect our business and financial
condition” on page 5 of the 2021 Annual Report); |
| ● | we
rely on the approvals, certificates, and business licenses held by Xiamen Pop Culture and any deterioration of the relationship between
Heliheng and Xiamen Pop Culture could materially and adversely affect our overall business operations (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Our Corporate Structure—We rely on the approvals, certificates, and business licenses held
by Xiamen Pop Culture and any deterioration of the relationship between Heliheng and Xiamen Pop Culture could materially and adversely
affect our overall business operations” on page 5 of the 2021 Annual Report); |
| ● | the
exercise of our option to purchase part or all of the shares in Xiamen Pop Culture under the exclusive option agreement might be subject
to certain limitations and substantial costs (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure—The exercise of our option to purchase part or all of the shares in Xiamen Pop Culture under the exclusive option agreement
might be subject to certain limitations and substantial costs” on page 6 of the 2021 Annual Report); and |
| ● | if
the PRC government determines that the VIE Agreements do not comply with PRC regulations, or if these regulations change or are interpreted
differently in the future, we may be unable to assert our contractual rights over the assets of the VIE, and our securities may decline
in value or become worthless (see “Risk Factors––Risks Relating to Our Corporate Structure––If the PRC
government determines that the VIE Agreements do not comply with PRC regulations, or if these regulations change or are interpreted differently
in the future, we may be unable to assert our contractual rights over the assets of the VIE, and our securities may decline in value
or become worthless” on page 21 of this prospectus). |
Risks
Relating to Doing Business in the PRC (for a more detailed discussion, see “Item 3. Key Information—D. Risk Factors—Risks
Relating to Doing Business in the PRC” in our 2021 Annual Report and “Risk Factors—Risks Relating to Doing Business
in the PRC” of this prospectus)
We
face risks and uncertainties relating to doing business in the PRC in general, including, but not limited to, the following:
| ● | there
are uncertainties under the Foreign Investment Law relating to the status of businesses in China controlled by foreign invested projects
primarily through contractual arrangements, such as our business (see “Item 3. Key Information—D. Risk Factors––Risks
Relating to Doing Business in PRC––There are uncertainties under the Foreign Investment Law relating to the status of businesses
in China controlled by foreign invested projects primarily through contractual arrangements, such as our business” on page 6 of
the 2021 Annual Report); |
| ● | changes
in China’s economic, political, social conditions, or government policies could have a material adverse effect on the PRC operating
entities’ business and operations (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business
in the PRC—Changes in China’s economic, political, or social conditions or government policies could have a material adverse
effect on our PRC operating entities’ business and operations” on page 7 of the 2021 Annual Report); |
| ● | you
may experience difficulties in effecting service of legal process, enforcing foreign judgments, or bringing actions in China against
us or our management named in this annual report based on foreign laws. It may also be difficult for you or overseas regulators to conduct
investigations or collect evidence within China (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing
Business in the PRC—You may experience difficulties in effecting service of legal process, enforcing foreign judgments, or bringing
actions in China against us or our management named in this annual report based on foreign laws. It may also be difficult for you or
overseas regulators to conduct investigations or collect evidence within China” on page 8 of the 2021 Annual Report); |
| ● | the
opinions recently issued by the General Office of the Central Committee of the Communist Party of China and the General Office of the
State Council may subject us to additional compliance requirement in the future (see “Item 3. Key Information—D. Risk Factors—Risks
Relating to Doing Business in the PRC—The opinions recently issued by the General Office of the Central Committee of the Communist
Party of China and the General Office of the State Council may subject us to additional compliance requirement in the future” on
page 10 of the 2021 Annual Report); |
| ● | increases
in labor costs in the PRC may adversely affect our PRC operating entities’ business and profitability (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Doing Business in the PRC—Increases in labor costs in the PRC may adversely affect our PRC
operating entities’ business and profitability” on page 11 of the 2021 Annual Report); |
| ● | if
our PRC operating entities fail to obtain or renew any of the requisite approvals, licenses, or permits applicable to our business, it
could materially and adversely affect their business and results of operations (see “Item 3. Key Information—D. Risk Factors—Risks
Relating to Doing Business in the PRC—if our PRC operating entities fail to obtain or renew any of the requisite approvals, licenses,
or permits applicable to our business, it could materially and adversely affect their business and results of operations” on page
12 of the 2021 Annual Report); |
| ● | our
PRC operating entities have not made adequate social insurance and housing fund contributions for all employees as required by PRC regulations,
which may subject them to penalties (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business
in the PRC—Our PRC operating entities have not made adequate social insurance and housing fund contributions for all employees
as required by PRC regulations, which may subject them to penalties” on page 12 of the 2021 Annual Report); |
| ● | PRC
regulations relating to offshore investment activities by PRC residents may limit our ability to acquire PRC companies or inject capital
into the PRC subsidiary and could adversely affect our business. PRC regulations relating to offshore investment activities by PRC residents
may limit our PRC subsidiary’s ability to increase its registered capital or distribute profits to us, or otherwise expose us or
our PRC resident shareholders to liabilities or penalties (see “Item 3. Key Information—D. Risk Factors—Risks Relating
to Doing Business in the PRC—PRC regulations relating to offshore investment activities by PRC residents may subject our PRC resident
beneficial owners or our PRC subsidiary to liability or penalties, limit our ability to inject capital into our PRC subsidiary, limit
our PRC subsidiary’s ability to increase its registered capital or distribute profits to us, or may otherwise adversely affect
us” on page 13 of the 2021 Annual Report); |
| ● | PRC
regulation of parent/subsidiary loans and direct investment by offshore holding companies to PRC entities may delay or prevent us from
using the proceeds of offshore offerings to make loans or additional capital contributions to our PRC subsidiary and to make loans to
Xiamen Pop Culture, which could materially and adversely affect their liquidity and their ability to fund and expand their business (see
“Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—PRC regulation of parent/subsidiary
loans and direct investment by offshore holding companies to PRC entities may delay or prevent us from using the proceeds of offshore
offerings to make loans or additional capital contributions to our PRC subsidiary and to make loans to Xiamen Pop Culture, which could
materially and adversely affect their liquidity and their ability to fund and expand their business” on page 14 of the 2021 Annual
Report); |
| ● | we
face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies
(see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—We face uncertainty
with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies” on page
17 of the 2021 Annual Report); |
| ● | fluctuations
in exchange rates could have a material and adverse effect on our results of operations and the value of your investment (see “Item
3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—Fluctuations in exchange rates could
have a material and adverse effect on our results of operations and the value of your investment” on page 15 of the 2021 Annual
Report); |
| ● | under
the PRC Enterprise Income Tax Law, we may be classified as a “resident enterprise” of China, which could result in unfavorable
tax consequences to us and our non-PRC shareholders and have a material adverse effect on our results of operations and the value of
your investment (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—Under
the PRC Enterprise Income Tax Law, we may be classified as a PRC “resident enterprise” for PRC enterprise income tax purposes.
Such classification would likely result in unfavorable tax consequences to us and our non-PRC shareholders and have a material adverse
effect on our results of operations and the value of your investment” on page 16 of the 2021 Annual Report); |
| ● | we
face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies
(see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—We face uncertainty
with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies” on page
17 of the 2021 Annual Report); |
| ● | our
PRC subsidiary is subject to restrictions on paying dividends or making other payments to us, which may have a material adverse effect
on our ability to conduct our business (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business
in the PRC—Our PRC subsidiary is subject to restrictions on paying dividends or making other payments to us, which may have a material
adverse effect on our ability to conduct our business” on page 17 of the 2021 Annual Report); |
| ● | governmental
control of currency conversion may affect the value of your investment and our payment of dividends (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Doing Business in the PRC—Governmental control of currency conversion may affect the value
of your investment and our payment of dividends” on page 18 of the 2021 Annual Report); |
| ● | there
are significant uncertainties under the EIT Law relating to the withholding tax liabilities of the PRC operating entities, and dividends
payable by the PRC operating entities to our offshore subsidiaries may not qualify to enjoy certain treaty benefits (see “Item
3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—There are significant uncertainties
under the EIT Law relating to the withholding tax liabilities of our PRC subsidiary, and dividends payable by our PRC subsidiary to our
offshore subsidiaries may not qualify to enjoy certain treaty benefits” on page 18 of the 2021 Annual Report); |
| ● | the
disclosures in our reports and other filings with the SEC and our other public pronouncements are not subject to the scrutiny of any
regulatory bodies in the PRC (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the
PRC—The disclosures in our reports and other filings with the SEC and our other public pronouncements are not subject to the scrutiny
of any regulatory bodies in the PRC” on page 19 of the 2021 Annual Report); |
| ● | the
M&A Rules and certain other PRC regulations establish complex procedures for certain acquisitions of Chinese companies by foreign
investors, which could make it more difficult for us to pursue growth through acquisitions in China (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Doing Business in the PRC—The M&A Rules and certain other PRC regulations establish complex
procedures for certain acquisitions of Chinese companies by foreign investors, which could make it more difficult for us to pursue growth
through acquisitions in China” on page 21 of the 2021 Annual Report); |
| ● | uncertainties
in the interpretation and enforcement of PRC laws and regulations and changes in policies, rules, and regulations in China, which may
be quick with little advance notice, could limit the legal protection available to you and us (see “Risk Factors—Risks Relating
to Doing Business in the PRC—Uncertainties in the interpretation and enforcement of PRC laws and regulations and changes in policies,
rules, and regulations in China, which may be quick with little advance notice, could limit the legal protection available to you and
us” on page 22 of this prospectus); |
| ● | given the Chinese
government’s significant oversight and discretion over the conduct of our business, the Chinese government may intervene or
influence our operations at any time, which could result in a material change in our operations and/or the value of our securities
(see “Risk Factors––Risks Relating to Doing Business in PRC––Given the Chinese government’s
significant oversight and discretion over the conduct of our business, the Chinese government may intervene or influence our
operations at any time, which could result in a material change in our operations and/or the value of our securities” on page
22 of this prospectus); |
| ● | the Draft Rules Regarding Overseas
Listings released by the CSRC for public consultation, while not yet in effect, may cause the Chinese government to exert more oversight
and control over overseas public offerings conducted by China-based issuers, which could significantly limit or completely hinder our
ability to offer or continue to offer our securities to investors and could cause the value of our securities to significantly decline
or become worthless. (see “Risk Factors––Risks Relating to Doing Business in PRC––The Draft Rules Regarding
Overseas Listings were released by the CSRC for public consultation. While such rules have not yet come into effect, the Chinese government
may exert more oversight and control over overseas public offerings conducted by China-based issuers, which could significantly limit
or completely hinder our ability to offer or continue to offer our securities to investors and could cause the value of our securities
to significantly decline or become worthless” on page 23 of this prospectus); |
| ● | recent greater oversight by
the Cyberspace Administration of China over data security, particularly for companies seeking to list on a foreign exchange, could adversely
impact our business and our offering (see “Risk Factors—Risks Relating to Doing Business in the PRC—Recent greater
oversight by the Cyberspace Administration of China over data security, particularly for companies seeking to list on a foreign exchange,
could adversely impact our business and our offering” on page 24 of this prospectus); |
| ● | recent joint statement by the
SEC and the PCAOB, rule changes by Nasdaq, and the Holding Foreign Companies Accountable Act all call for additional and more stringent
criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors
who are not inspected by the PCAOB. These developments could add uncertainties to our continued listing or future offerings of our securities
in the U.S. (see “Risk Factors—Risks Relating to Doing Business in the PRC—Recent joint statement by the SEC and the
PCAOB, rule changes by Nasdaq, and the Holding Foreign Companies Accountable Act all call for additional and more stringent criteria
to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are
not inspected by the PCAOB. These developments could add uncertainties to our continued listing or future offerings of our securities
in the U.S.” on page 24 of this prospectus); and |
| ● | to the extent cash in the business
is in the PRC, the funds may not be available to fund operations or for other use outside of the PRC due to interventions in or the imposition
of restrictions and limitations on the ability of our Company, our subsidiaries, or the consolidated VIE by the PRC government to transfer
cash (see “Risk Factors—Risks Relating to Our Corporate Structure—To the extent cash in the business is in the PRC,
the funds may not be available to fund operations or for other use outside of the PRC due to interventions in or the imposition of restrictions
and limitations on the ability of our Company, our subsidiaries, or the VIE by the PRC government to transfer cash” on page
25 of this prospectus). |
Risks Related to Our Business (for a more
detailed discussion, see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business” in our 2021
Annual Report and “Risk Factors—Risks Relating to Our Business” of this prospectus)
Risks and uncertainties related to our business
include, but are not limited to, the following:
| |
● |
the PRC operating entities have in recent years shifted their focus to the Event Hosting business, which makes it difficult to predict our prospects and our business and financial performance (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business—The PRC operating entities have in recent years shifted their focus to the Event Hosting business, which makes it difficult to predict our prospects and our business and financial performance” on page 21 of the 2021 Annual Report); |
| |
|
|
| |
● |
if the PRC operating entities are unable to retain the existing clients for their Event Planning and Execution and Marketing businesses, their results of operations will be materially and adversely affected (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business—If the PRC operating entities are unable to retain the existing clients for their Event Planning and Execution and Marketing businesses, their results of operations will be materially and adversely affected” on page 22 of the 2021 Annual Report); |
| |
|
|
| |
● |
a substantial portion of the PRC operating entities’ revenue and accounts receivable are currently derived from a small number of customers. If any of these customers experiences a material business disruption, the PRC operating entities would likely incur substantial losses of revenue (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business—A substantial portion of the PRC operating entities’ revenue and accounts receivable are currently derived from a small number of customers. If any of these customers experiences a material business disruption, the PRC operating entities would likely incur substantial losses of revenue” on page 22 of the 2021 Annual Report); |
| ● | the PRC operating entities’ success is tied to events
generally and, in particular, to changes in popularity of hip-hop events on which they choose to focus (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Our Business—The PRC operating entities’ success is tied to events generally and, in
particular, to changes in popularity of hip-hop events on which they choose to focus” on page 24 of the 2021 Annual Report); |
| |
● |
the PRC operating entities depend on the success of live entertainment events, which are inherently susceptible to risks, and their exposure to such risks is potentially heightened as a result of the nature of entertainment events and the fan experiences they seek to create (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business—Our PRC operating entities depend on the success of live entertainment events, which are inherently susceptible to risks, and their exposure to such risks is potentially heightened as a result of the nature of entertainment events and the fan experiences they seek to create” on page 25 of the 2021 Annual Report); |
| |
● |
the PRC operating entities use third-party services in connection with their business, and any disruption to these services could result in a disruption to their business, negative publicity, and a slowdown in the growth of their customer base, materially and adversely affecting their business, financial condition, and results of operations (see “Risk Factors—Risks Relating to Our Business—The PRC operating entities use third-party services in connection with their business, and any disruption to these services could result in a disruption to their business, negative publicity, and a slowdown in the growth of their customer base, materially and adversely affecting their business, financial condition, and results of operations” on page 26 of the 2021 Annual Report); and |
| |
● |
the PRC operating entities’ business depends on the continued success of their brands, and if they fail to maintain and enhance the recognition of their brands, they may face difficulty increasing their network of partners and clients, and their reputation and operating results may be harmed (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business—Our PRC operating entities’ business depends on the continued success of their brands, and if they fail to maintain and enhance the recognition of their brands, they may face difficulty increasing their network of partners and clients, and their reputation and operating results may be harmed” on page 27 of the 2021 Annual Report). |
Risks Relating to Our Class A Ordinary Shares
and the Trading Market (for a more detailed discussion, see “Item 3. Key Information—D. Risk Factors—Risks Relating
to Risks Relating to Our Class A Ordinary Shares and the Trading Market” in our 2021 Annual Report)
In addition to the risks described above, we are
subject to general risks and uncertainties relating to our Class A Ordinary Shares and the trading market, including, but not limited
to, the following:
| ● | we do not intend to pay dividends
for the foreseeable future (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Risks Relating to Our Class
A Ordinary Shares and the Trading Market—We do not intend to pay dividends for the foreseeable future” on page 33 of the
2021 Annual Report); |
| ● | the market price of our Class
A Ordinary Shares may be volatile or may decline regardless of our operating performance (see “Item 3. Key Information—D.
Risk Factors—Risks Relating to Risks Relating to Our Class A Ordinary Shares and the Trading Market—The market price of our
Class A Ordinary Shares may be volatile or may decline regardless of our operating performance, and you may not be able to resell your
shares at or above the public offering price” on page 33 of the 2021 Annual Report); |
| ● | if we cease to qualify as a
foreign private issuer, we would be required to comply fully with the reporting requirements of the Exchange Act applicable to U.S. domestic
issuers, and we would incur significant additional legal, accounting and other expenses that we would not incur as a foreign private
issuer (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Risks Relating to Our Class A Ordinary Shares
and the Trading Market—If we cease to qualify as a foreign private issuer, we would be required to comply fully with the reporting
requirements of the Exchange Act applicable to U.S. domestic issuers, and we would incur significant additional legal, accounting, and
other expenses that we would not incur as a foreign private issuer” on page 34 of the 2021 Annual Report); |
| ● | because we are a foreign private
issuer and are exempt from certain Nasdaq corporate governance standards applicable to U.S. issuers, you will have less protection than
you would have if we were a domestic issuer (see “Item 3. Key Information—D. Risk Factors— Risks Relating to Risks
Relating to Our Class A Ordinary Shares and the Trading Market—Because we are a foreign private issuer and intend to take advantage
of exemptions from certain Nasdaq corporate governance standards applicable to U.S. issuers, you will have less protection than you would
have if we were a domestic issuer” on page 34 of the 2021 Annual Report); |
| ● | the laws of the Cayman Islands
may not provide our shareholders with benefits comparable to those provided to shareholders of corporations incorporated in the United
States (see “Item 3. Key Information—D. Risk Factors—Risks Relating to Risks Relating to Our Class A Ordinary Shares
and the Trading Market—The laws of the Cayman Islands may not provide our shareholders with benefits comparable to those provided
to shareholders of corporations incorporated in the United States” on page 37 of the 2021 Annual Report); |
| ● | anti-takeover provisions in
our amended and restated memorandum and articles of association may discourage, delay, or prevent a change in control (see “Item
3. Key Information—D. Risk Factors—Risks Relating to Risks Relating to Our Class A Ordinary Shares and the Trading Market—Anti-takeover
provisions in our amended and restated memorandum and articles of association may discourage, delay, or prevent a change in control”
on page 39 of the 2021 Annual Report); |
| ● | the dual class structure of
our ordinary shares has the effect of concentrating voting control with our chief executive officer and chairman, and his interests may
not be aligned with the interests of our other shareholders (see “Item 3. Key Information—D. Risk Factors—Risks Relating
to Risks Relating to Our Class A Ordinary Shares and the Trading Market—The dual class structure of our ordinary shares has the
effect of concentrating voting control with our chief executive officer and chairman, and his interests may not be aligned with the interests
of our other shareholders” on page 39 of the 2021 Annual Report); and |
| ● | we are a “controlled
company” within the meaning of the Nasdaq listing rules, and may follow certain exemptions from certain corporate governance requirements
that could adversely affect our public shareholders (see “Item 3. Key Information—D. Risk Factors—Risks Relating to
Risks Relating to Our Class A Ordinary Shares and the Trading Market—We are a “controlled company” within the meaning
of the Nasdaq listing rules, and may follow certain exemptions from certain corporate governance requirements that could adversely affect
our public shareholders” on page 39 of the 2021 Annual Report). |
Permissions Required from PRC Authorities
As of the date of this prospectus, our PRC
subsidiaries and the PRC operating entities are required to obtain, and have successfully obtained as required, the following
licenses, permissions, and approvals for operations in mainland China: (i) business licenses; (ii) the EDI and ICP Licenses; (iii)
the Commercial Performance License; (iv) the Radio and Television Program Production and Operation Permit; and (v) the
filing-for-record procedures before engaging in non-commercial Internet content service operations. Besides, the PRC operating
entities are in the process of applying for the following licenses, permissions, or approvals, which may be required for their new
operations in mainland China: (i) the Internet Culture Business Operating License; (ii) the Internet Publication License; (iii) the
filing-for-record procedures with the CAC’s filing management system for blockchain information services; and (iv) the
filing-for-record procedures for artworks related business activities with local cultural administrative authorities. However, we
cannot assure you that any of these entities will be able to receive clearance of such compliance requirements in a timely manner,
or at all. Any failure of these entities to fully comply with such compliance requirements may cause our PRC subsidiaries or the PRC
operating entities to be unable to begin their new businesses or operations in mainland China, subject them to fines, relevant new
businesses or operations suspension for rectification, or other sanctions. See “Item 3. Key Information—D. Risk
Factors—Risks Relating to Doing Business in the PRC—If the PRC operating entities fail to obtain or renew any of the
requisite approvals, licenses, or permits applicable to our business, it could materially and adversely affect their business and
results of operations” in the 2021 Annual Report.
As of the date of this prospectus, none of
the Company, our subsidiaries, or the PRC operating entities have applied for, received, or been denied approval from any PRC
authorities to issue our securities to foreign investors, nor received any inquiry, notice, warning, or sanctions regarding issuing
our securities to foreign investors from the CSRC, the CAC, or any other PRC governmental authorities. As advised by our PRC
counsel, JT&N, we, our subsidiaries, and the PRC operating entities are not required to obtain permission from the CSRC, the
CAC, or any other Chinese authorities to issue our securities to foreign investors based on PRC laws and regulations currently in effect. Nevertheless, the General Office of the Central Committee of the Communist Party of China and the General
Office of the State Council jointly issued the Opinions on Severely Cracking Down on Illegal Securities Activities According to
Law, or the Opinions, which were made available to the public on July 6, 2021. The Opinions emphasized the need to strengthen
the administration over illegal securities activities and the need to strengthen the supervision over overseas listings by Chinese
companies. See “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—The
opinions recently issued by the General Office of the Central Committee of the Communist Party of China and the General Office of
the State Council may subject us to additional compliance requirement in the future” of the 2021 Annual Report.
On December 28, 2021, 13 governmental departments
of the PRC, including the CAC, issued the revised Cybersecurity Review Measures, which became effective on February 15, 2022. The Cybersecurity
Review Measures require that an online platform operator which possesses the personal information of at least one million users must apply
for a cybersecurity review by the CAC if it intends to be listed in foreign countries. Such requirement is reiterated on the Security
Administration Draft, which was released by the CAC on November 14, 2021 for public consultation. As advised by our PRC counsel, JT&N,
as of the date of this prospectus, we are not subject to cybersecurity review or network data security review by the CAC, since (i) as
companies that host entertainment events, operate hip-hop related online programs, and provide event planning and execution services and
marketing services to corporate clients, we and the PRC operating entities are unlikely to be classified as CIIOs by the PRC regulatory
agencies; (ii) we and the PRC operating entities currently possess personal information of a relatively small number of users in our business
operations, significantly less than the one million user threshold set for a data processing operator applying for listing on a foreign
exchange that may be required to pass such cybersecurity review, and we do not anticipate that we will be collecting over one million
users’ personal information in the foreseeable future; (iii) since we and the PRC operating entities are in the hip-hop industry,
data processed in our business is unlikely to have a bearing on national security and therefore is unlikely to be classified as core or
important data by the authorities. There remains uncertainty, however, as to how the Cybersecurity Review Measures and the Security Administration
Draft will be interpreted or implemented and whether the PRC regulatory agencies, including the CAC, may adopt new laws, regulations,
rules, or detailed implementation and interpretation related to the Cybersecurity Review Measures and the Security Administration Draft.
See “Risk Factors—Risks Relating to Doing Business in the PRC—Recent greater oversight by the Cyberspace Administration
of China over data security, particularly for companies seeking to list on a foreign exchange, could adversely impact our business and
our offering.”
In addition, on December 24, 2021, the CSRC and
relevant departments of the State Council issued the Draft Rules Regarding Overseas Listings, which aim to regulate overseas securities
offerings and listings by China-based companies, for public consultation. According to the Draft Rules Regarding Overseas Listings, among
other things, after making initial applications with overseas stock markets for initial public offerings or listings, or after the completion
of issuance of overseas listed securities by the overseas listed issuer, all China-based companies shall file the required filing materials
with the CSRC within three working days. In addition, overseas offerings and listings may be prohibited for such China-based companies
when any of six occasions occur. As of the date of this prospectus, the Draft Rules Regarding Overseas Listings have been released for
public comment only and have not been formally promulgated, and neither we nor any of the PRC operating entities have been required to
complete the filing procedures. There remain, however, uncertainties as to the enactment or future interpretations and implementations
of the Draft Rules Regarding Overseas Listings. See “Risk Factors—Risks Relating to Doing Business in the PRC—The Draft
Rules Regarding Overseas Listings were released by the CSRC for public consultation. While such rules have not yet come into effect, the
Chinese government may exert more oversight and control over overseas public offerings conducted by China-based issuers, which could significantly
limit or completely hinder our ability to offer or continue to offer our securities to investors and could cause the value of our securities
to significantly decline or become worthless.”
However, we cannot assure you that the PRC regulatory
agencies, including the CAC, or the CSRC, would take the same view as we do, and there is no assurance that our PRC subsidiaries and the
PRC operating entities are always able to successfully update or renew the licenses or permits required for the relevant business in a
timely manner or that these licenses or permits are sufficient to conduct all of our present or future business. If our PRC subsidiaries
or the PRC operating entities (i) do not receive or maintain required permissions or approvals, (ii) inadvertently conclude that such
permissions or approvals are not required, or (iii) applicable laws, regulations, or interpretations change and our PRC subsidiaries and
the PRC operating entities are required to obtain such permissions or approvals in the future, we could be subject to fines, legal sanctions
or an order to suspend our relevant services, which may materially and adversely affect our financial condition and results of operations
and cause our securities to significantly decline in value or become worthless.
Asset Transfers Between Our Company, Our
Subsidiaries, and the VIE
As of the date of this prospectus, our Company,
our subsidiaries, and the VIE have not distributed any earnings or settled any amounts owed under the VIE Agreements. Our Company, our
subsidiaries, and the VIE do not have any plan to distribute earnings or settle amounts owed under the VIE Agreements in the foreseeable
future.
During the six months ended December 31, 2021 and the fiscal years
ended June 30, 2021, 2020, and 2019, cash transfers and transfers of other assets between Pop Culture Group, its subsidiaries, and the
VIE were as follows: in July 2020, Pop Culture Group transferred approximately $600,000 to its subsidiary in Hong Kong, which in turn
transferred approximately $599,000 to its PRC subsidiary; and in July 2021, Pop Culture Group transferred approximately $7,081,000 of
the net proceeds from our initial public offering to its Hong Kong subsidiary, which in turn transferred approximately $7,050,000 to its
PRC subsidiary. See our unaudited condensed consolidated interim financial statements for the six months ended December 31, 2021 and our
audited consolidated financial statements in the 2021 Annual Report.
Dividends or Distributions Made to Our Company
and U.S. Investors and Tax Consequences
As of the date of this prospectus, none of our
subsidiaries or the VIE have made any dividends or distributions to our Company and our Company has not made any dividends or distributions
to our shareholders. We intend to keep any future earnings to finance the expansion of our business, and we do not anticipate that any
cash dividends will be paid in the foreseeable future. Subject to the passive foreign investment company (“PFIC”) rules, the
gross amount of distributions we make to investors with respect to our securities (including the amount of any taxes withheld therefrom)
will be taxable as a dividend, to the extent that the distribution is paid out of our current or accumulated earnings and profits, as
determined under U.S. federal income tax principles.
Under Cayman Islands law, a Cayman Islands company
may pay a dividend on its shares out of either profit or share premium amount, provided that in no circumstances may a dividend be paid
if this would result in the company being unable to pay its debts due in the ordinary course of business.
Cash is transferred among our Company, our subsidiaries,
and the VIE, in the following manners: (i) funds are transferred to Heliheng, our WFOE, from our Company as needed through Pop Culture
HK, our Hong Kong subsidiary, in the form of capital contributions or shareholder loans, as the case may be; (ii) funds may be paid by
the VIE to Heliheng, as service fees according to the VIE Agreements; (iii) dividends or other distributions may be paid by Heliheng,
to our Company through Pop Culture HK; and (iv) Heliheng and the VIE, lend to and borrow from each other from time to time for business
operation purposes.
Relevant PRC laws and regulations permit the
companies in mainland China to pay dividends only out of their retained earnings, if any, as determined in accordance with PRC
accounting standards and regulations. Additionally, each of the companies in mainland China are required to set aside at least 10%
of its after-tax profits each year, if any, to fund a statutory reserve until such reserve reaches 50% of its registered capital.
The companies in mainland China are also required to further set aside a portion of their after-tax profits to fund the employee
welfare fund, although the amount to be set aside, if any, is determined at their discretion. These reserves are not distributable
as cash dividends. Furthermore, in order for us to pay dividends to our shareholders, we will rely on payments made from Xiamen Pop
Culture to Heliheng, pursuant to the VIE Agreements, and the distribution of such payments to Pop Culture HK as dividends from
Heliheng, and then to our Company. If our PRC subsidiaries and the PRC operating entities incur debt on their own behalf in the
future, the instruments governing the debt may restrict their ability to pay dividends or make other payments to us.
Our cash dividends, if any, will be paid in
U.S. dollars. If we are considered a tax resident enterprise of mainland China for tax purposes, any dividends we pay to our
overseas shareholders may be regarded as mainland China-sourced income and as a result may be subject to PRC withholding tax. See
“Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in the PRC—Under the PRC
Enterprise Income Tax Law, we may be classified as a PRC ‘resident enterprise’ for PRC enterprise income tax purposes.
Such classification would likely result in unfavorable tax consequences to us and our non-PRC shareholders and have a material
adverse effect on our results of operations and the value of your investment” of the 2021 Annual Report.
The PRC government also imposes controls on
the convertibility of Renminbi into foreign currencies and, in certain cases, the remittance of currency out of mainland China. The
majority of our and the PRC operating entities’ income is received in Renminbi and shortages in foreign currencies may
restrict our ability to pay dividends or other payments, or otherwise satisfy our foreign currency denominated obligations, if any.
Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest
payments and expenditures from trade-related transactions, can be made in foreign currencies without prior approval from the State
Administration of Foreign Exchange as long as certain procedural requirements are met. Approval from appropriate government
authorities is required if Renminbi is converted into foreign currency and remitted out of mainland China to pay capital expenses
such as the repayment of loans denominated in foreign currencies. The PRC government may, at its discretion, impose restrictions on
access to foreign currencies for current account transactions and if this occurs in the future, we may not be able to pay dividends
in foreign currencies to our shareholders.
Any limitation on the ability of our PRC subsidiaries
and the PRC operating entities to distribute dividends or other payments to their respective shareholders could materially and adversely
limit our ability to conduct operations, make investments, engage in acquisitions, or undertake other activities requiring working capital.
However, our operations and business, including investment and/or acquisitions by our PRC subsidiaries and the PRC operating entities
within mainland China, will not be affected as long as the capital is not transferred in or out of mainland China.
Selected Condensed Consolidating Financial
Schedule
As a holding company with no material
operations of our own, we conduct our operations through the VIE and its subsidiaries in mainland China. Our subsidiaries and the
VIE and its subsidiaries as of the date of this prospectus are described below:
| Name of Entity |
|
Date of
Incorporation/Acquisition |
|
Place of
Incorporation/Acquisition |
|
Effective Interest Held Through Equity Ownership/ Contractual Arrangements |
|
Principal Activities |
| Pop culture Group |
|
January 3, 2020 |
|
Cayman Islands |
|
100% |
|
Parent Holding |
| |
|
|
|
|
|
|
|
|
| Subsidiaries |
|
|
|
|
|
|
|
|
| Pop Culture HK |
|
January 20, 2020 |
|
Hong Kong |
|
100% |
|
Investment holding |
| Heliheng |
|
March 13, 2020 |
|
PRC |
|
100% |
|
WFOE, consultancy and information technology support |
Pop Culture Global |
|
December 3, 2021 |
|
California |
|
100% |
|
Overseas hip-hop resource integration and business development |
| Pop Investment |
|
January 25, 2022 |
|
PRC |
|
60% owned by Heliheng; 40% owned by the VIE |
|
Cross-border funds management |
| |
|
|
|
|
|
|
|
|
| VIE |
|
|
|
|
|
|
|
|
| Xiamen Pop Culture |
|
March 29, 2007 |
|
PRC |
|
VIE |
|
Event planning, execution, and hosting |
| |
|
|
|
|
|
|
|
|
| VIE’s subsidiaries |
|
|
|
|
|
|
|
|
| Shanghai Pudu Culture Communications Co., Ltd. |
|
March 30, 2017 |
|
PRC |
|
100% owned by the VIE |
|
Event planning and execution |
| Xiamen Pop Network Technology Co., Ltd. |
|
June 6, 2017 |
|
PRC |
|
100% owned by the VIE |
|
Marketing |
| Guangzhou Shuzhi |
|
December 19, 2018 |
|
PRC |
|
100% owned by the VIE |
|
Event planning and execution |
| Shenzhen Pop Culture Co., Ltd. |
|
January 17, 2020 |
|
PRC |
|
100% owned by the VIE |
|
Event planning and execution |
| Pupu Digital |
|
June 20, 2022 |
|
PRC |
|
100% owned by the VIE |
|
Cultural technology |
| Hualiu Digital |
|
April 14, 2022 |
|
PRC |
|
100% owned by the VIE |
|
Acting broker and self-branding development |
| Pop Sikai |
|
August 18, 2020 |
|
PRC |
|
51% owned by the VIE |
|
Event planning and execution |
| Zhongpu Shuyuan |
|
March 30, 2022 |
|
PRC |
|
51% owned by the VIE |
|
Digital collection and Metaverse |
| Xiamen Qiqin |
|
April 12, 2022 |
|
PRC |
|
26% owned by the VIE |
|
IPC License |
| Shenzhen Jam box |
|
November 18, 2020 |
|
PRC |
|
60% owned by the VIE |
|
Event planning and execution |
| Xiamen Shuzhi |
|
May 16, 2022 |
|
PRC |
|
70% owned by the VIE |
|
Online and offline advertising marketing and exhibitions |
| Fujian Shuzhi |
|
May 18, 2022 |
|
PRC |
|
51% owned by the VIE |
|
Online and offline advertising marketing and exhibitions |
The following tables present selected condensed
consolidated financial data of Pop Culture Group and its subsidiaries and the VIE and its subsidiaries for the six months ended December
31, 2021 and the fiscal years ended June 30, 2021, 2020, and 2019, and balance sheet data as of December 31, 2021 and June 30, 2021 and
2020.
SELECTED CONDENSED CONSOLIDATED STATEMENTS OF
INCOME AND COMPREHENSIVE INCOME (LOSS)
| | |
For the Six Months Ended
December 31, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Revenue | |
$ | - | | |
$ | 6,753,261 | | |
$ | 13,479,760 | | |
$ | (84,818 | ) | |
$ | 20,148,203 | |
| Cost of revenue | |
$ | - | | |
$ | 5,722,122 | | |
$ | 10,393,991 | | |
$ | (84,818 | ) | |
$ | 16,031,295 | |
| Gross profit | |
$ | - | | |
$ | 1,031,139 | | |
$ | 3,085,769 | | |
$ | - | | |
$ | 4,116,908 | |
| Service fee income | |
$ | - | | |
$ | 1,090,050 | | |
$ | - | | |
$ | (1,090,050 | )* | |
$ | - | |
| Net income | |
$ | (1,052,576 | ) | |
$ | 1,584,029 | | |
$ | 1,005,232 | | |
$ | (1,090,050 | ) | |
$ | 446,635 | |
| Comprehensive income | |
$ | (1,052,576 | ) | |
$ | 1,710,685 | | |
$ | 818,894 | | |
$ | (1,090,050 | ) | |
$ | 386,953 | |
| * | To eliminate income generated by Heliheng. |
| | |
For the Fiscal Year Ended
June 30, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Revenue | |
$ | - | | |
$ | 655,255 | | |
$ | 24,871,302 | | |
$ | - | | |
$ | 25,526,557 | |
| Cost of revenue | |
$ | - | | |
$ | 579,454 | | |
$ | 17,723,040 | | |
$ | - | | |
$ | 18,302,494 | |
| Gross profit | |
$ | - | | |
$ | 75,801 | | |
$ | 7,148,262 | | |
$ | - | | |
$ | 7,224,063 | |
| Service fee income | |
$ | - | | |
$ | 4,571,795 | | |
$ | - | | |
$ | (4,571,795 | ) | |
$ | - | |
| Net (loss) income | |
$ | (330,734 | ) | |
$ | 4,598,276 | | |
$ | 4,571,795 | | |
$ | (4,571,795 | ) | |
$ | 4,267,542 | |
| Comprehensive (loss) income | |
$ | (330,734 | ) | |
$ | 4,648,657 | | |
$ | 5,857,171 | | |
$ | (4,571,795 | ) | |
$ | 5,603,299 | |
| | |
For the Fiscal Year Ended June 30, 2020 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Revenue | |
$ | - | | |
$ | - | | |
$ | 15,688,080 | | |
$ | - | | |
$ | 15,688,080 | |
| Cost of revenue | |
$ | - | | |
$ | - | | |
$ | 11,158,847 | | |
$ | - | | |
$ | 11,158,847 | |
| Gross profit | |
$ | - | | |
$ | - | | |
$ | 4,529,233 | | |
$ | - | | |
$ | 4,529,233 | |
| Net (loss) income | |
$ | (318,634 | ) | |
$ | (99 | ) | |
$ | 2,944,550 | | |
$ | - | | |
$ | 2,625,817 | |
| Comprehensive (loss) income | |
$ | (318,634 | ) | |
$ | (100 | ) | |
$ | 2,702,712 | | |
$ | - | | |
$ | 2,383,978 | |
| | |
For the Fiscal Year Ended June 30, 2019 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Revenue | |
$ | - | | |
$ | - | | |
$ | 19,031,766 | | |
$ | - | | |
$ | 19,031,766 | |
| Cost of revenue | |
$ | - | | |
$ | - | | |
$ | 13,158,537 | | |
$ | - | | |
$ | 13,158,537 | |
| Gross profit | |
$ | - | | |
$ | - | | |
$ | 5,873,229 | | |
$ | - | | |
$ | 5,873,229 | |
| Net income | |
$ | - | | |
$ | - | | |
$ | 3,831,758 | | |
$ | - | | |
$ | 3,831,758 | |
| Comprehensive income | |
$ | - | | |
$ | - | | |
$ | 3,668,908 | | |
$ | - | | |
$ | 3,668,908 | |
SELECTED CONDENSED CONSOLIDATED BALANCE SHEETS
| | |
As of December 31, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated Total | |
| Cash | |
$ | 25,256,901 | | |
$ | 557,250 | | |
$ | 2,696,842 | | |
$ | - | | |
$ | 28,510,993 | |
| Receivable from the VIE | |
$ | - | | |
$ | 1,090,050 | | |
$ | - | | |
$ | (1,090,050 | ) | |
$ | - | |
| Total current assets | |
$ | 26,464,317 | | |
$ | 6,569,154 | | |
$ | 30,970,179 | | |
$ | (1,090,050 | ) | |
$ | 62,913,600 | |
| Investments in subsidiaries and the VIE | |
$ | 7,681,000 | | |
$ | 7,649,000 | | |
$ | - | | |
$ | (15,330,000 | ) | |
$ | - | |
| Total assets | |
$ | 34,145,388 | | |
$ | 17,565,732 | | |
$ | 30,571,944 | | |
$ | (16,420,050 | ) | |
$ | 65,863,014 | |
| Total liabilities | |
$ | 70,000 | | |
$ | 533,101 | | |
$ | 11,475,417 | | |
$ | - | | |
$ | 12,078,518 | |
| Total shareholders’ equity | |
$ | 34,075,388 | | |
$ | 17,032,631 | | |
$ | 19,096,527 | | |
$ | (16,420,050 | ) | |
$ | 53,784,496 | |
| Total liabilities and shareholders’ equity | |
$ | 34,145,388 | | |
$ | 17,565,732 | | |
$ | 30,571,944 | | |
$ | (16,420,050 | ) | |
$ | 65,863,014 | |
| | |
As of June 30, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated Total | |
| Cash | |
$ | 4,260 | | |
$ | 27,654 | | |
$ | 1,288,063 | | |
$ | - | | |
$ | 1,319,977 | |
| Receivable from the VIE | |
$ | - | | |
$ | 4,571,795 | | |
$ | - | | |
$ | (4,571,795 | ) | |
$ | - | |
| Total current assets | |
$ | 683,526 | | |
$ | 5,243,936 | | |
$ | 31,054,450 | | |
$ | (4,571,795 | ) | |
$ | 32,410,117 | |
| Investments in subsidiaries and the VIE | |
$ | 18,869,579 | | |
$ | 599,000 | | |
$ | - | | |
$ | (19,468,579 | ) | |
$ | - | |
| Total assets | |
$ | 19,553,105 | | |
$ | 5,849,445 | | |
$ | 33,067,159 | | |
$ | (24,040,374 | ) | |
$ | 34,429,335 | |
| Total liabilities | |
$ | 225,000 | | |
$ | 1,888 | | |
$ | 14,874,342 | | |
$ | - | | |
$ | 15,101,230 | |
| Total shareholders’ equity | |
$ | 19,328,105 | | |
$ | 5,847,557 | | |
$ | 18,192,817 | | |
$ | (24,040,374 | ) | |
$ | 19,328,105 | |
| Total liabilities and shareholders’ equity | |
$ | 19,553,105 | | |
$ | 5,849,445 | | |
$ | 33,067,159 | | |
$ | (24,040,374 | ) | |
$ | 34,429,335 | |
| | |
As of June 30, 2020 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Cash | |
$ | 1,139,229 | | |
$ | - | | |
$ | 219,908 | | |
$ | - | | |
$ | 1,359,137 | |
| Total current assets | |
$ | 1,389,260 | | |
$ | - | | |
$ | 19,134,497 | | |
$ | - | | |
$ | 20,523,757 | |
| Investments in subsidiaries and the VIE | |
$ | 11,530,464 | | |
$ | - | | |
$ | - | | |
$ | (11,530,464 | ) | |
$ | - | |
| Total assets | |
$ | 12,919,722 | | |
$ | - | | |
$ | 21,514,514 | | |
$ | (11,530,464 | ) | |
$ | 22,903,772 | |
| Total liabilities | |
$ | - | | |
$ | 95 | | |
$ | 9,178,871 | | |
$ | - | | |
$ | 9,178,966 | |
| Total shareholders’ equity | |
$ | 12,919,722 | | |
$ | (95 | ) | |
$ | 12,335,643 | | |
$ | (11,530,464 | ) | |
$ | 13,724,806 | |
| Total liabilities and shareholders’ equity | |
$ | 12,919,722 | | |
$ | - | | |
$ | 21,514,514 | | |
$ | (11,530,464 | ) | |
$ | 22,903,772 | |
SELECTED CONDENSED CONSOLIDATED STATEMENTS OF
CASH FLOWS
| | |
For the Six Months Ended December 31, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Net cash used in operating activities | |
$ | (1,207,576 | ) | |
$ | 529,596 | | |
$ | (4,807,163 | ) | |
$ | - | | |
$ | (5,485,143 | ) |
| Net used in investing activities | |
$ | (7,081,000 | ) | |
$ | - | | |
$ | (74,411 | ) | |
$ | 7,081,000 | | |
$ | (74,411 | ) |
| Net cash used in (provided by) financing activities | |
$ | 33,541,217 | | |
$ | - | | |
$ | (1,153,376 | ) | |
$ | - | | |
$ | 32,387,841 | |
| | |
For the Fiscal Year Ended June 30, 2021 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Net cash used in operating activities | |
$ | (75,805 | ) | |
$ | (651,453 | ) | |
$ | (3,310,074 | ) | |
$ | - | | |
$ | (4,037,332 | ) |
| Net used in investing activities | |
$ | (600,000 | ) | |
$ | - | | |
$ | - | | |
$ | 600,000 | | |
$ | - | |
| Net cash used in (provided by) financing activities | |
$ | (459,164 | ) | |
$ | (568,24 | ) | |
$ | 4,378,228 | | |
$ | 600,000 | | |
$ | 3,950,823 | |
| | |
For the Fiscal Year Ended June 30, 2020 | |
| | |
Pop Culture
Group | | |
Subsidiaries | | |
VIE and its
Subsidiaries | | |
Eliminations | | |
Consolidated
Total | |
| Net cash used in operating activities | |
$ | (348,870 | ) | |
$ | - | | |
$ | (2,255,959 | ) | |
$ | - | | |
$ | (2,604,829 | ) |
| Net provided by investing activities | |
$ | - | | |
$ | - | | |
$ | 3,261 | | |
$ | - | | |
$ | 3,261 | |
| Net cash provided by financing activities | |
$ | 1,487,862 | | |
$ | - | | |
$ | 1,777,271 | | |
$ | - | | |
$ | 3,265,133 | |
| | |
For the Fiscal Year Ended June 30, 2019 | |
| | |
Pop Culture Group | | |
Subsidiaries | | |
VIE and its Subsidiaries | | |
Eliminations | | |
Consolidated Total | |
| Net cash provided by operating activities | |
$ | - | | |
$ | - | | |
$ | 821,200 | | |
$ | - | | |
$ | 821,200 | |
| Net used in investing activities | |
$ | - | | |
$ | - | | |
$ | (2,077,298 | ) | |
$ | - | | |
$ | (2,077,298 | ) |
| Net cash provided by financing activities | |
$ | - | | |
$ | - | | |
$ | 1,499,084 | | |
$ | - | | |
$ | 1,499,084 | |
Corporate Information
Our principal executive offices are located at
3rd Floor, No. 168, Fengqi Road, Jimei District, Xiamen City, Fujian Province, the PRC, and our phone number is +86-0592-5968169. Our
registered office in the Cayman Islands is located at 4th Floor, Harbour Place, 103 South Church Street, P.O. Box 10240, Grand Cayman
KY1-1002, Cayman Islands, and the phone number of our registered office is +1-3459498599. We maintain a corporate website at http://cpop.cn/.
The information contained in, or accessible from, our website or any other website does not constitute a part of this prospectus. Our
agent for service of process in the United States is Cogency Global Inc., located at 122 East 42nd Street, 18th Floor, New York, NY 10168.
RISK FACTORS
Investing in our securities involves risks. Before
making an investment decision, you should carefully consider the risks described under “Risk Factors” in the applicable prospectus
supplement and under the heading “Item 3. Key Information—D. Risk Factors” in the 2021 Annual Report, which is incorporated
in this prospectus by reference, as updated by our subsequent filings under the Exchange Act that are incorporated herein by reference,
together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus and any applicable
prospectus supplement, in light of your particular investment objectives and financial circumstances. In addition to those risk factors,
there may be additional risks and uncertainties of which management is not aware or focused on or that management deems immaterial. Our
business, financial condition, or results of operations could be materially adversely affected by any of these risks. The trading price
of our securities could decline due to any of these risks, and you may lose all or part of your investment.
In addition, investing in our securities is
highly speculative and involves a significant degree of risk. We are a holding company incorporated in the Cayman Islands and not a
Chinese operating company. As a holding company with no material operations of our own, we conduct our operations through the VIE
and its subsidiaries in mainland China. We do not have any equity ownership of the VIE; instead, for accounting purposes, we control
and receive the economic benefits of the VIE’s business operations through the VIE Agreements, which enables us to consolidate
the financial results of the VIE and its subsidiaries in our consolidated financial statements under U.S. GAAP. Our securities
offered in this offering are securities of Pop Culture Group, the offshore holding company in the Cayman Islands, instead of
securities of the VIE or its subsidiaries in mainland China. The Chinese regulatory authorities could disallow our structure, which
could result in a material change in our operations and the value of our securities could decline or become worthless. Set forth
below are certain risks related to the VIE structure and recent regulatory initiatives implemented by the relevant PRC government
entities.
Risks Relating to Our Corporate Structure
If the PRC government determines that the
VIE Agreements do not comply with PRC regulatory restrictions on foreign investment in the relevant industries, or if these regulations
or the interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish
our interests in those operations.
Foreign ownership of Internet content services
and radio and television program production and distribution business is prohibited under current PRC laws and regulations. Accordingly,
we currently operate our radio and television program production and distribution business through Xiamen Pop Culture, a VIE, pursuant
to the VIE Agreements. For a description of the VIE Agreements, see “Our Corporate Structure—The VIE Agreements.”
According to our PRC counsel, JT&N,
based on its understandings of the relevant PRC laws and regulations, (i) the ownership structures of Xiamen Pop Culture and
Heliheng is currently not in violation of applicable PRC laws and regulations currently in effect; and (ii) each of the VIE
Agreements is legal, valid, binding, and enforceable in accordance with its terms and applicable PRC laws and regulations. Our PRC
counsel, JT&N, however, has also advised us that there are substantial uncertainties regarding the interpretation and
application of current or future PRC laws and regulations. The VIE Agreements have not been tested in a court of law in mainland
China as of the date of this prospectus. Accordingly, the PRC regulatory authorities may ultimately take a view contrary to the
opinion of our PRC counsel. It is uncertain whether any new PRC laws or regulations relating to VIE structures will be adopted or,
if adopted, what they would provide.
If our corporate structure and the VIE
Agreements are determined as illegal or invalid by the competent court in mainland China, arbitral tribunal, or regulatory
authorities, we may be unable to consolidate the financial results of the VIE and its subsidiaries in our consolidated financial
statements under U.S. GAAP and have to modify such structure to comply with regulatory requirements. However, there can be no
assurance that we can achieve this without material disruption to our business. Further, if our corporate structure and contractual
arrangements are found to be in violation of any existing or future PRC laws or regulations, or we or Xiamen Pop Culture fails to
obtain or maintain any required permits or approvals, the relevant regulatory authorities would have broad discretion in dealing
with such violations, including:
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revoking the business and/or operating licenses of Heliheng or Xiamen Pop Culture; |
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restricting or prohibiting our use of the proceeds from our public
offering to finance the PRC operating entities’ business and operations in mainland China; and |
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imposing fines. |
The imposition of any of these penalties would
result in a material and adverse effect on the PRC operating entities’ ability to conduct their business. In addition, it is unclear
what impact the PRC government actions would have on us and on our ability to consolidate the financial results of Xiamen Pop Culture
in our consolidated financial statements, if the PRC government authorities were to find our legal structure and the VIE Agreements to
be in violation of PRC laws and regulations. If the imposition of any of these government actions causes us to lose our right to direct
the activities of Xiamen Pop Culture or our right to receive substantially all the economic benefits and residual returns from Xiamen
Pop Culture and we are not able to restructure our ownership structure and operations in a satisfactory manner, we would no longer be
able to consolidate the financial results of Xiamen Pop Culture in our consolidated financial statements. Either of these results, or
any other significant penalties that might be imposed on us in this event, would have a material adverse effect on our financial condition
and results of operations, and our securities may decline in value or become worthless.
Risks Relating to Doing Business in the PRC
Uncertainties in the interpretation and
enforcement of PRC laws and regulations and changes in policies, rules, and regulations in China, which may be quick with little advance
notice, could limit the legal protection available to you and us.
There are substantial uncertainties regarding
the interpretation and application of PRC laws and regulations including, but not limited to, the laws and regulations governing our business
and the enforcement and performance of our arrangements with third parties in certain circumstances. The laws and regulations are sometimes
vague and may be subject to future changes, and their official interpretation and enforcement could be unpredictable, with little advance
notice. The effectiveness and interpretation of newly enacted laws or regulations, including amendments to existing laws and regulations,
may be delayed, and our business may be affected if we rely on laws and regulations which are subsequently adopted or interpreted in a
manner different from our current understanding of these laws and regulations. New laws and regulations that affect existing and proposed
future businesses may also be applied retroactively. We cannot predict what effect the interpretation of existing or new PRC laws or regulations
may have on our business.
The legal system in mainland China is a
civil law system based on written statutes. Unlike the common law system, prior court decisions under the civil law system may be
cited for reference but have limited precedential value. In addition, any new or changes in PRC laws and regulations related to
foreign investment in mainland China could affect the business environment and our ability to operate our business in
mainland China.
From time to time, we may have to resort to
administrative and court proceedings to enforce our legal rights. Any administrative and court proceedings in mainland China may be
protracted, resulting in substantial costs and diversion of resources and management attention. Since PRC administrative and court
authorities have significant discretion in interpreting and implementing statutory and contractual terms, however, it may be more
difficult to evaluate the outcome of administrative and court proceedings and the level of legal protection we enjoy in the legal
system in mainland China than in more developed legal systems. Furthermore, the legal system in mainland China is based in part
on government policies, internal rules, and regulations (some of which are not published in a timely manner or at all) that may have
retroactive effect and may change quickly with little advance notice. As a result, we may not be aware of our violation of these
policies and rules until sometime after the violation. Such uncertainties, including uncertainties over the scope and effect of
our contractual, property (including intellectual property), and procedural rights, and any failure to respond to changes in the
regulatory environment in mainland China could materially and adversely affect our business and impede our ability to continue our
operations.
Such uncertainties, including the promulgation
of new laws, or changes to existing laws or the interpretation or enforcement thereof, could limit the legal protections available to
us and our investors, including you.
Given the Chinese government’s significant
oversight and discretion over the conduct of our business, the Chinese government may intervene or influence our operations at any time,
which could result in a material change in our operations and/or the value of our securities.
The Chinese government has exercised and
continues to exercise substantial control over virtually every sector of the Chinese economy through regulation and state ownership.
Substantially all of our operations are located in mainland China. Our ability to operate in mainland China may be harmed by changes
in its laws and regulations, including those relating to taxation, foreign investment, information security, Internet, and other
matters. The central or local governments of mainland China may impose new, stricter regulations or interpretations of existing
regulations that would require additional expenditures and efforts on our part to ensure our compliance with such regulations or
interpretations. Accordingly, government actions in the future, including any decision not to continue to support recent economic
reforms and to return to a more centrally planned economy or regional or local variations in the implementation of economic
policies, could have a significant effect on economic conditions in mainland China or particular regions thereof, and could require
us to divest ourselves of any interest we then hold in Chinese properties.
For example, the Chinese cybersecurity regulator
announced on July 2, 2021, that it had begun an investigation of Didi Global Inc. and two days later ordered that the company’s
app be removed from smartphone app stores. On July 24, 2021, the General Office of the Central Committee of the Communist Party of China
and the General Office of the State Council jointly released the Guidelines for Further Easing the Burden of Excessive Homework and Off-campus
Tutoring for Students at the Stage of Compulsory Education, pursuant to which foreign investment in such firms via mergers and acquisitions,
franchise development, and variable interest entities are banned from this sector. We cannot rule out the possibility that the Chinese
government will in the future release regulations or policies regarding our industry that could adversely affect our business, financial
condition, and results of operations.
Furthermore, recent statements made by the Chinese
government have indicated an intent to increase the government’s oversight and control over offerings of companies with significant
operations in mainland China that are to be conducted in foreign markets, as well as foreign investment in China-based issuers. Any future
action by the Chinese government expanding the categories of industries and companies whose foreign securities offerings are subject to
government review could significantly limit or completely hinder our ability to offer or continue to offer securities to investors or
could disallow our current operating structure, which would likely result in a material change in our operations and/or a material change
in the value of our securities, including causing the value of such securities to significantly decline or become worthless.
We have been closely monitoring the
development in the regulatory landscape in mainland China, particularly regarding the requirement of approvals, including on a
retrospective basis, from the CAC, the CSRC or other PRC authorities with respect to this offering, as well as other procedures that
may be imposed on us. If any approval or other procedure is in fact required, we are not able to guarantee that we will obtain such
approval or complete such other procedure timely or at all. For any approval that we may be able to obtain, it could nevertheless be
revoked and the terms of its issuance may impose restrictions on our operations and offerings relating to our securities. As a
result, we face uncertainty about future actions by the PRC government that could significantly affect our ability to offer or
continue to offer securities to investors and cause the value of our securities to significantly decline or be worthless.
The Draft Rules Regarding Overseas Listings
were released by the CSRC for public consultation. While such rules have not yet come into effect, the Chinese government may exert more
oversight and control over overseas public offerings conducted by China-based issuers, which could significantly limit or completely hinder
our ability to offer or continue to offer our securities to investors and could cause the value of our securities to significantly decline
or become worthless.
On December 24, 2021, the CSRC and relevant
departments of the State Council issued the Draft Rules Regarding Overseas Listings, which aim to regulate overseas securities
offerings and listings by China-based companies, for public consultation. The Draft Rules Regarding Overseas Listing aim to lay out
the filing regulation arrangement for both direct and indirect overseas listing and clarify the determination criteria for indirect
overseas listing in overseas markers. Where an enterprise whose principal business activities are conducted in mainland China seeks
to issue and list its shares in the name of an overseas enterprise based on equity, assets, income, or other similar rights and
interests of the relevant domestic enterprise in mainland China, such activities are deemed an indirect overseas issuance and
listing. According to the Draft Rules Regarding Overseas Listings, among other things, after making initial applications with
overseas stock markets for initial public offerings or listings, or after the completion of issuance of overseas listed securities
by the overseas listed issuer, all China-based companies shall file the required filing materials with the CSRC within three working
days. In addition, overseas offerings and listings may be prohibited for such China-based companies when any of the following
applies: (i) if the intended securities offerings and listings are specifically prohibited by the PRC laws and regulations; (ii) if the intended securities offerings and listings may constitute a threat to, or endanger national
security as reviewed and determined by competent authorities under the State Council in accordance with laws; (iii) if there are
material ownership disputes over applicants’ equity interests, major assets, core technologies, or the others; (iv) if, in the
past three years, applicants’ domestic enterprises, controlling shareholders, or de facto controllers have committed
corruption, bribery, embezzlement, misappropriation of property, or other criminal offenses disruptive to the order of the socialist
market economy, or are currently under judicial investigation for suspicion of criminal offenses, or are under investigation for
suspicion of major violations; (v) if, in the past three years, any directors, supervisors, or senior executives of applicants have
been subject to administrative punishments for severe violations, or are currently under judicial investigation for suspicion of
criminal offenses, or are under investigation for suspicion of major violations; or (vi) other circumstances as prescribed by the
State Council. The Draft Administrative Provisions further stipulate that a fine between RMB1 million (approximately $157,255) and
RMB10 million (approximately $1,572,550) may be imposed if an applicant fails to fulfill the filing requirements with the CSRC or
conducts an overseas offering or listing in violation of the Draft Rules Regarding Overseas Listings, and in cases of severe
violations, a parallel order to suspend relevant businesses or halt operations for rectification may be issued, and relevant
business permits or operational license revoked.
As of the date of this prospectus, the Draft Rules
Regarding Overseas Listings have been released for public comment only and have not been formally promulgated, and neither we, our subsidiaries,
nor any of the PRC operating entities have been required to complete the filing procedures. However, uncertainties remain as to its enactment
or future interpretations and implementations. Our PRC counsel, JT&N, has advised us that, even if the final rules are promulgated
as proposed in the current Draft Rules Regarding Overseas Listings, none of the situations that would clearly prohibit overseas offering
and listings would apply to us. In addition, we would only need to submit the filing materials and no CSRC approval would be required
under such rules. Notwithstanding the above, our PRC counsel has further advised us that uncertainties still exist as to whether we, our
subsidiaries, or the PRC operating entities are required to obtain permissions from the Chinese government that is required to approve
of our operations and/or offering. In the event that we, our subsidiaries, or the PRC operating entities are subject to the compliance
requirements, we cannot assure you that any of these entities will be able to receive clearance of such compliance requirements in a timely
manner, or at all. Any failure of our Company, our subsidiaries, or the PRC operating entities to fully comply with new regulatory requirements
may subject us to regulatory actions, such as fines, relevant businesses or operations suspension for rectification, revocation of relevant
business permits or operational license, or other sanctions, which may significantly limit or completely hinder our ability to offer or
continue to offer our securities cause significant disruption to our business operations, severely damage our reputation, materially and
adversely affect our financial condition and results of operations and cause our securities to significantly decline in value or become
worthless.
Recent greater oversight by the Cyberspace
Administration of China over data security, particularly for companies seeking to list on a foreign exchange, could adversely impact our
business and our offering.
On December 28, 2021, the CAC and other relevant
PRC governmental authorities jointly promulgated the Cybersecurity Review Measures, which took effect on February 15, 2022. The Cybersecurity
Review Measures provide that, in addition to CIIOs that intend to purchase Internet products and services, net platform operators engaging
in data processing activities that affect or may affect national security must be subject to cybersecurity review by the Cybersecurity
Review Office of the PRC. According to the Cybersecurity Review Measures, a cybersecurity review assesses potential national security
risks that may be brought about by any procurement, data processing, or overseas listing. The Cybersecurity Review Measures require that
an online platform operator which possesses the personal information of at least one million users must apply for a cybersecurity review
by the CAC if it intends to be listed in foreign countries.
On November 14, 2021, the CAC published the Security
Administration Draft, which provides that data processing operators engaging in data processing activities that affect or may affect national
security must be subject to network data security review by the relevant Cyberspace Administration of the PRC. According to the Security
Administration Draft, data processing operators who possess personal data of at least one million users or collect data that affects or
may affect national security must be subject to network data security review by the relevant Cyberspace Administration of the PRC. The
deadline for public comments on the Security Administration Draft was December 13, 2021.
As of the date of this prospectus, we have not
received any notice from any authorities identifying our PRC subsidiaries or the PRC operating entities as CIIOs or requiring us to go
through cybersecurity review or network data security review by the CAC. As confirmed by our PRC counsel, JT&N, neither the operations
of our PRC subsidiaries, nor of the PRC operating entities, nor this offering are expected to be affected, and that we will not be subject
to cybersecurity review by the CAC under the Cybersecurity Review Measures, nor will any such entity be subject to the Security Administration
Draft, if it is enacted as proposed, given that our PRC subsidiaries and the PRC operating entities possess personal data of fewer than
one million individual clients and do not collect data that affects or may affect national security in their business operations as of
the date of this prospectus and do not anticipate that they will be collecting over one million users’ personal information or data
that affects or may affect national security in the near future. In general, we believe we are compliant with the regulations or policies
that have been issued by the CAC to date. There remains uncertainty, however, as to how the Cybersecurity Review Measures and the Security
Administration Draft will be interpreted or implemented and whether the PRC regulatory agencies, including the CAC, may adopt new laws,
regulations, rules, or detailed implementation and interpretation related to the Cybersecurity Review Measures and the Security Administration
Draft. If any such new laws, regulations, rules, or implementation and interpretation come into effect, we will take all reasonable measures
and actions to comply and to minimize the adverse effect of such laws on us. We cannot assure you that PRC regulatory agencies, including
the CAC, would take the same view as we do. In the event that we are subject to any mandatory cybersecurity review and other specific
actions required by the CAC, we face uncertainty as to whether any clearance or other required actions can be timely completed, or at
all. If we inadvertently conclude that such approval is not required, fail to obtain and maintain such approvals, licenses, or permits
required for our business or respond to changes in the regulatory environment, we could be subject to liabilities, penalties and operational
disruption, which may materially and adversely affect our business, operating results, financial condition, and the value of our securities,
significantly limit or completely hinder our ability to offer or continue to offer securities to investors, or cause such securities to
significantly decline in value or become worthless.
Recent joint statement by the SEC and the
PCAOB, rule changes by Nasdaq, and the Holding Foreign Companies Accountable Act all call for additional and more stringent criteria to
be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are not
inspected by the PCAOB. These developments could add uncertainties to our continued listing or future offerings of our securities in the
U.S.
On April 21, 2020, SEC Chairman Jay Clayton and
PCAOB Chairman William D. Duhnke III, along with other senior SEC staff, released a joint statement highlighting the risks associated
with investing in companies based in or have substantial operations in emerging markets including China. The joint statement emphasized
the risks associated with lack of access for the PCAOB to inspect auditors and audit work papers in China and higher risks of fraud in
emerging markets.
On May 18, 2020, Nasdaq filed three proposals
with the SEC to (i) apply a minimum offering size requirement for companies primarily operating in a “Restrictive Market,”
(ii) adopt a new requirement relating to the qualification of management or the board of directors for Restrictive Market companies, and
(iii) apply additional and more stringent criteria to an applicant or listed company based on the qualifications of the company’s
auditor. On October 4, 2021, the SEC approved Nasdaq’s revised proposal for the rule changes.
On May 20, 2020, the U.S. Senate passed the Holding
Foreign Companies Accountable Act requiring a foreign company to certify it is not owned or controlled by a foreign government if the
PCAOB is unable to audit specified reports because the company uses a foreign auditor not subject to PCAOB inspection. If the PCAOB is
unable to inspect the company’s auditors for three consecutive years, the issuer’s securities are prohibited to trade on a
national exchange. On December 2, 2020, the U.S. House of Representatives approved the Holding Foreign Companies Accountable Act. On December
18, 2020, the Holding Foreign Companies Accountable Act was signed into law.
On March 24, 2021, the SEC adopted interim final
rules relating to the implementation of certain disclosure and documentation requirements of the Holding Foreign Companies Accountable
Act.
On June 22, 2021, the U.S. Senate passed the Accelerating
Holding Foreign Companies Accountable Act, which, if passed by the U.S. House of Representatives and signed into law, would reduce the
number of consecutive non-inspection years required for triggering the prohibitions under the Holding Foreign Companies Accountable Act
from three years to two, and thus, would reduce the time before our securities may be prohibited from trading or delisted.
On September 22, 2021, the PCAOB adopted a final
rule implementing the Holding Foreign Companies Accountable Act, which provides a framework for the PCAOB to use when determining, as
contemplated under the Holding Foreign Companies Accountable Act, whether the board of directors of a company is unable to inspect or
investigate completely registered public accounting firms located in a foreign jurisdiction because of a position taken by one or more
authorities in that jurisdiction.
On December 2, 2021, the SEC adopted amendments
to finalize rules implementing the submission and disclosure requirements in the Holding Foreign Companies Accountable Act.
On December 16, 2021, the PCAOB issued a report
on its determinations that it is unable to inspect or investigate completely PCAOB-registered public accounting firms headquartered in
mainland China and in Hong Kong because of positions taken by mainland China and Hong Kong authorities in those jurisdictions.
The lack of access to the PCAOB inspection in
China prevents the PCAOB from fully evaluating audits and quality control procedures of the auditors based in China. As a result, investors
may be deprived of the benefits of such PCAOB inspections. The inability of the PCAOB to conduct inspections of auditors in China makes
it more difficult to evaluate the effectiveness of these accounting firm’s audit procedures or quality control procedures as compared
to auditors outside of China that are subject to the PCAOB inspections, which could cause investors and potential investors to lose confidence
in the audit procedures and reported financial information and the quality of the financial statements of those companies who have China-based
auditors.
Our auditor, WWC, P.C., is an independent registered
public accounting firm with the PCAOB, and as an auditor of publicly traded companies in the U.S., is subject to laws in the U.S., pursuant
to which the PCAOB conducts regular inspections to assess its compliance with the applicable professional standards. The PCAOB currently
has access to inspect the working papers of our auditor and our auditor is not subject to the determinations announced by the PCAOB on
December 16, 2021. However, the recent developments would add uncertainties to our offering and we cannot assure you whether Nasdaq or
regulatory authorities would apply additional and more stringent criteria to us since we are an emerging growth company and substantial
all of our operations are conducting in China. Furthermore, the Holding Foreign Companies Accountable Act, which requires that the PCAOB
be permitted to inspect an issuer’s public accounting firm within three years, may result in the delisting of our Company or prohibition
of trading in our securities in the future if the PCAOB is unable to inspect our accounting firm at such future time. The Accelerating
Holding Foreign Companies Accountable Act, if passed by the U.S. House of Representatives and signed into law, would reduce the period
of time for foreign companies to comply with PCAOB audits to two consecutive years instead of three, thus reducing the time period for
triggering the delisting of our Company and the prohibition of trading in our securities if the PCAOB is unable to inspect our accounting
frim at such future time. In addition, delisting may cause a significant decrease in or a total loss of the value of our securities. Although
a shareholder's ownership of our Company may not decrease directly from delisting, the ownership may become worth much less, or, in some
cases, lose its entire value.
To the extent cash
in the business is in the PRC, the funds may not be available to fund operations or for other use outside of the PRC due to interventions
in or the imposition of restrictions and limitations on the ability of our Company, our subsidiaries, or the VIE by the PRC government
to transfer cash.
Relevant PRC laws and regulations permit the
companies in mainland China to pay dividends only
out of their retained earnings, if any, as determined in accordance with PRC accounting standards and regulations. Additionally,
each of the companies in mainland China are
required to set aside at least 10% of its after-tax profits each year, if any, to fund a statutory reserve until such reserve
reaches 50% of its registered capital. The companies in mainland
China are also required to further set aside a portion of their after-tax profits to fund the employee welfare fund, although
the amount to be set aside, if any, is determined at their discretion. These reserves are not distributable as cash dividends.
Furthermore, in order for us to pay dividends to our shareholders, we will rely on payments made from Xiamen Pop Culture to
Heliheng, pursuant to the VIE Agreements, and the distribution of such payments to Pop Culture HK as dividends from Heliheng, and
then to our Company. If our PRC subsidiaries and the PRC operating entities incur debt on their own behalf in the future, the
instruments governing the debt may restrict their ability to pay dividends or make other payments to us.
Our cash dividends, if any, will be paid in
U.S. dollars. If we are considered a tax resident enterprise of mainland
China for tax purposes, any dividends we pay to our overseas shareholders may be regarded as China-sourced income and as a
result may be subject to PRC withholding tax. See “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing
Business in the PRC—Under the PRC Enterprise Income Tax Law, we may be classified as a PRC ‘resident enterprise’
for PRC enterprise income tax purposes. Such classification would likely result in unfavorable tax consequences to us and our
non-PRC shareholders and have a material adverse effect on our results of operations and the value of your investment” of the
2021 Annual Report.
The PRC government also imposes controls on
the convertibility of Renminbi into foreign currencies and, in certain cases, the remittance of currency out of mainland China. The
majority of our and the PRC operating entities’ income is received in Renminbi and shortages in foreign currencies may
restrict our ability to pay dividends or other payments, or otherwise satisfy our foreign currency denominated obligations, if any.
Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest
payments and expenditures from trade-related transactions, can be made in foreign currencies without prior approval from the State
Administration of Foreign Exchange as long as certain procedural requirements are met. Approval from appropriate government
authorities is required if Renminbi is converted into foreign currency and remitted out of mainland China to pay capital expenses
such as the repayment of loans denominated in foreign currencies. The PRC government may, at its discretion, impose restrictions on
access to foreign currencies for current account transactions and if this occurs in the future, we may not be able to pay dividends
in foreign currencies to our shareholders.
Any limitation on the ability of our PRC subsidiaries
and the PRC operating entities to distribute dividends or other payments to their respective shareholders could materially and adversely
limit our ability to conduct operations, make investments, engage in acquisitions, or undertake other activities requiring working capital.
However, our operations and business, including investment and/or acquisitions by our PRC subsidiaries and the PRC operating entities
within mainland China, will not be affected as long as the capital is not transferred in or out of mainland China.
OFFER STATISTICS AND EXPECTED TIMETABLE
We may from time to time, offer and sell any combination
of the securities described in this prospectus up to a total dollar amount of $200,000,000 in one or more offerings. The securities offered
under this prospectus may be offered separately, together, or in separate series, and in amounts, at prices, and on terms to be determined
at the time of sale. We will keep the registration statement of which this prospectus is a part effective until such time as all of the
securities covered by this prospectus have been disposed of pursuant to and in accordance with such registration statement.
CAPITALIZATION AND INDEBTEDNESS
Our capitalization will be set forth in the applicable
prospectus supplement or in a report on Form 6-K subsequently furnished to the SEC and specifically incorporated by reference into this
prospectus.
DILUTION
If required, we will set forth in a prospectus
supplement the following information regarding any material dilution of the equity interests of investors purchasing securities in an
offering under this prospectus:
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the net tangible book value per share of our equity securities before and after the offering; |
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and |
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers. |
USE OF PROCEEDS
We intend to use the net proceeds from the sale
of securities we offer as indicated in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus.
DESCRIPTION OF SHARE CAPITAL
The following description of our share capital
and provisions of our amended and restated memorandum and articles of association, as amended from time to time, are summaries and do
not purport to be complete. Reference is made to our amended and restated memorandum and articles of association which are currently effective
(and which is referred to in this section as, respectively, the “memorandum” and the “articles”).
We were incorporated as an exempted company with
limited liability under the Companies Act of the Cayman Islands, as amended, or the “Cayman Companies Act,” on January 3,
2020. A Cayman Islands exempted company:
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is a company that conducts its business mainly outside the Cayman Islands; |
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is prohibited from trading in the Cayman Islands with any person, firm, or corporation except in furtherance of the business of the exempted company carried on outside the Cayman Islands (and for this purpose can effect and conclude contracts in the Cayman Islands and exercise in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands); |
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does not have to hold an annual general meeting; |
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does not have to make its register of members open to inspection by shareholders of that company; |
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may obtain an undertaking against the imposition of any future taxation; |
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may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands; |
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may register as a limited duration company; and |
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may register as a segregated portfolio company. |
Ordinary Shares
Our authorized share capital is $50,000 divided
into 44,000,000 Class A Ordinary Shares, par value $0.001 per share, and 6,000,000 Class B Ordinary Shares, par value $0.001 per share.
As of the date of this prospectus, there are 18,286,923 Class A Ordinary Shares and 5,763,077 Class B Ordinary Shares issued and outstanding.
Holders of Class A Ordinary Shares and Class B Ordinary Shares have the same rights except for voting and conversion rights. In respect
of matters requiring a shareholder vote, each holder of Class A Ordinary Shares will be entitled to one vote per one Class A Ordinary
Share and each holder of Class B Ordinary Shares will be entitled to seven votes per one Class B Ordinary Share. The Class A Ordinary
Shares are not convertible into shares of any other class. The Class B Ordinary Shares are convertible into Class A Ordinary Shares at
any time after issuance at the option of the holder on a one-to-one basis.
All of our issued and outstanding Class A Ordinary
Shares and Class B Ordinary Shares are fully paid and non-assessable. Our Class A Ordinary Shares and Class B Ordinary Shares are issued
in registered form, and are issued when registered in our register of members. Unless the board of directors determine otherwise, each
holder of our Class A Ordinary Shares or Class B Ordinary Shares will not receive a certificate in respect of such shares. Our shareholders
who are non-residents of the Cayman Islands may freely hold and vote their Class A Ordinary Shares and Class B Ordinary Shares. We may
not issue shares or warrants to bearer.
Subject to the provisions of the Cayman Companies
Act and our articles regarding redemption and purchase of the shares, the directors have general and unconditional authority to allot
(with or without confirming rights of renunciation), grant options over or otherwise deal with any unissued shares to such persons, at
such times and on such terms and conditions as they may decide. Such authority could be exercised by the directors to allot shares which
carry rights and privileges that are preferential to the rights attaching to Class A Ordinary Shares or Class B Ordinary Shares. No share
may be issued at a discount except in accordance with the provisions of the Cayman Companies Act. The directors may refuse to accept any
application for shares, and may accept any application in whole or in part, for any reason or for no reason.
Markets
Our Class A Ordinary Shares have been listed on
the Nasdaq Capital Market under the symbol “CPOP.”
Transfer Agent and Registrar
The transfer agent and registrar for our Class
A Ordinary Shares and Class B Ordinary Shares is Transhare Corporation, at Bayside Center 1, 17755 North U.S. Highway 19, Suite #140,
Clearwater FL 33764.
Dividends
Subject to the provisions of the Cayman Companies
Act and any rights attaching to any class or classes of shares under and in accordance with the articles:
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the directors may declare dividends or distributions out of our funds which are lawfully available for that purpose; and |
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our shareholders may, by ordinary resolution, declare dividends but no such dividend shall exceed the amount recommended by the directors. |
Subject to the requirements of the Cayman Companies
Act regarding the application of a company’s share premium account and with the sanction of an ordinary resolution, dividends may
be declared and paid out of any share premium account. The directors when paying dividends to shareholders may make such payment either
in cash or in specie.
Unless provided by the rights attached to a share,
no dividend shall bear interest.
Voting Rights
On a poll, every shareholder who is present in
person and every person representing a shareholder by proxy shall have one vote for each Class A Ordinary Share and seven votes for each
Class B Ordinary Share of which he or the person represented by proxy is the holder. In addition, all shareholders holding shares of a
particular class are entitled to vote at a meeting of the holders of that class of shares. Votes may be given either personally or by
proxy.
Conversion Rights
Class A Ordinary Shares are not convertible. Class
B Ordinary Shares are convertible, at the option of the holder thereof, into Class A Ordinary Shares on a one-to-one basis.
Variation of Rights of Shares
Whenever our capital is divided into different
classes of shares, the rights attaching to any class of share (unless otherwise provided by the terms of issue of the shares of that class)
may be varied either with the consent in writing of the holders of not less than two-thirds of the issued shares of that class, or with
the sanction of a resolution passed by a majority of not less than two-thirds of the holders of shares of the class present in person
or by proxy at a separate general meeting of the holders of shares of that class.
Unless the terms on which a class of shares was
issued state otherwise, the rights conferred on the shareholder holding shares of any class shall not be deemed to be varied by the creation
or issue of further shares ranking pari passu with the existing shares of that class.
Alteration of Share Capital
Subject to the Cayman Companies Act, we may, by
ordinary resolution:
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increase our share capital by new shares of the amount fixed by that ordinary resolution and with the attached rights, priorities and privileges set out in that ordinary resolution; |
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consolidate and divide all or any of our share capital into shares of larger amount than our existing shares; |
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convert all or any of our paid up shares into stock, and reconvert that stock into paid up shares of any denomination; |
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sub-divide our shares or any of them into shares of an amount smaller than that fixed, so, however, that in the sub-division, the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in case of the share from which the reduced share is derived; and |
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cancel shares which, at the date of the passing of that ordinary resolution, have not been taken or agreed to be taken by any person and diminish the amount of our share capital by the amount of the shares so cancelled or, in the case of shares without nominal par value, diminish the number of shares into which our capital is divided. |
Subject to the Cayman Companies Act and to any
rights for the time being conferred on the shareholders holding a particular class of shares, our shareholders may, by special resolution,
reduce our share capital in any way.
Calls on Shares and Forfeiture
Subject to the terms of allotment, the directors
may make calls on the shareholders in respect of any monies unpaid on their shares including any premium and each shareholder shall (subject
to receiving at least 14 clear days’ notice specifying when and where payment is to be made), pay to us the amount called on the
shareholder’s shares. Shareholders registered as the joint holders of a share shall be jointly and severally liable to pay all calls
in respect of the share. If a call remains unpaid after it has become due and payable the person from whom it is due and payable shall
pay interest on the amount unpaid from the day it became due and payable until it is paid at the rate fixed by the terms of allotment
of the share or in the notice of the call or if no rate is fixed, at the rate of 10 percent per annum. The directors may, at their discretion,
waive payment of the interest wholly or in part.
We have a first and paramount lien on all shares
(whether fully paid up or not) registered in the name of a shareholder (whether solely or jointly with others). The lien is for all monies
payable to us by the shareholder or the shareholder’s estate:
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either alone or jointly with any other person, whether or not that other person is a shareholder; and |
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whether or not those monies are presently payable. |
At any time the directors may declare any share
to be wholly or partly exempt from the lien on shares provisions of the articles.
We may sell, in such manner as the directors may
determine, any share on which the sum in respect of which the lien exists is presently payable, if due notice that such sum is payable
has been given (as prescribed by the articles) and, within 14 days of the date on which the notice is deemed to be given under the articles,
such notice has not been complied with.
Unclaimed Dividend
A dividend that remains unclaimed for a period
of six years after it became due for payment shall be forfeited to, and shall cease to remain owing by, the Company.
Forfeiture or Surrender of Shares
If a shareholder fails to pay any call, the directors
may give to such shareholder not less than 14 clear days’ notice requiring payment and specifying the amount unpaid including any
interest which may have accrued, any expenses which have been incurred by us due to that person’s default and the place where payment
is to be made. The notice shall also contain a warning that if the notice is not complied with, the shares in respect of which the call
is made will be liable to be forfeited.
If such notice is not complied with, the directors
may, before the payment required by the notice has been received, resolve that any share the subject of that notice be forfeited (which
forfeiture shall include all dividends or other monies payable in respect of the forfeited share and not paid before such forfeiture).
A forfeited share may be sold, re-allotted or
otherwise disposed of on such terms and in such manner as the directors determine and at any time before a sale, re-allotment or disposition
the forfeiture may be cancelled on such terms as the directors think fit.
A person whose shares have been forfeited shall
cease to be a shareholder in respect of the forfeited shares, but shall, notwithstanding such forfeiture, remain liable to pay to us all
monies which at the date of forfeiture were payable by him to us in respect of the shares, together with all expenses and interest from
the date of forfeiture or surrender until payment, but his liability shall cease if and when we receive payment in full of the unpaid
amount.
A declaration, whether statutory or under oath,
made by a director or the secretary shall be conclusive evidence that the person making the declaration is a director or secretary and
that the particular shares have been forfeited or surrendered on a particular date.
Subject to the execution of an instrument of transfer,
if necessary, the declaration shall constitute good title to the shares.
Share Premium Account
The directors shall establish a share premium
account and shall carry the credit of such account from time to time to a sum equal to the amount or value of the premium paid on the
issue of any share or capital contributed or such other amounts required by the Cayman Companies Act.
Redemption and Purchase of Own Shares
Subject to the Cayman Companies Act and any rights
for the time being conferred on the shareholders holding a particular class of shares, we may by action of our directors:
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issue shares that are to be redeemed or liable to be redeemed, at our option or the shareholder holding those redeemable shares, on the terms and in the manner our directors determine before the issue of those shares; |
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with the consent by special resolution of the shareholders holding shares of a particular class, vary the rights attaching to that class of shares so as to provide that those shares are to be redeemed or are liable to be redeemed at our option on the terms and in the manner which the directors determine at the time of such variation; and |
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purchase all or any of our own shares of any class including any redeemable shares on the terms and in the manner which the directors determine at the time of such purchase. |
We may make a payment in respect of the redemption
or purchase of its own shares in any manner authorized by the Cayman Companies Act, including out of any combination of capital, our profits
and the proceeds of a fresh issue of shares made for the purpose of the redemption.
We may make a payment in respect of the redemption
or purchase of our own shares in any manner authorized by the Cayman Companies Act, including out of any combination of capital, our profits
and the proceeds of a fresh issue of shares.
When making a payment in respect of the redemption
or purchase of shares, the directors may make the payment in cash or in specie (or partly in one and partly in the other) if so authorized
by the terms of the allotment of those shares or by the terms applying to those shares, or otherwise by agreement with the shareholder
holding those shares.
Transfer of Shares
Provided that a transfer of Class A Ordinary Shares
complies with applicable rules of the Nasdaq Global Market, a shareholder may transfer Class A Ordinary Shares or Class B Ordinary Shares
to another person by completing an instrument of transfer in a common form or, with respect to Class A Ordinary Shares, in a form prescribed
by Nasdaq, or in any other form approved by the directors, executed:
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where the Class A Ordinary Shares or Class B Ordinary Shares are fully paid, by or on behalf of that shareholder; and |
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where the Class A Ordinary Shares or Class B Ordinary Shares are partly paid, by or on behalf of that shareholder and the transferee. |
The transferor shall be deemed to remain the holder
of a Class A Ordinary Share or Class B Ordinary Share until the name of the transferee is entered into the register of members of the
Company.
Our board of directors may, in its absolute discretion,
decline to register any transfer of any Class A Ordinary Share or Class B Ordinary Share that has not been fully paid up or is subject
to a company lien. Our board of directors may also decline to register any transfer of such Class A Ordinary Share or Class B Ordinary
Share unless:
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the instrument of transfer is lodged with the Company, accompanied by the certificate for the Class A Ordinary Shares or Class B Ordinary Shares to which it relates and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer; |
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the instrument of transfer is in respect of only one class of shares; |
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the instrument of transfer is properly stamped, if required; |
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the Class A Ordinary Share or Class B Ordinary Share transferred is fully paid and free of any lien in favor of us; |
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any fee related to the transfer has been paid to us; and |
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the transfer is not to more than four joint holders. |
If our directors refuse to register a transfer,
they are required, within three months after the date on which the instrument of transfer was lodged, to send to each of the transferor
and the transferee notice of such refusal.
This, however, is unlikely to affect market transactions
of the Class A Ordinary Shares purchased by investors in the public offering. The legal title to such Class A Ordinary Shares and the
registration details of those Class A Ordinary Shares in our register of members remains with the Depository Trust Company. All market
transactions with respect to those Class A Ordinary Shares are carried out without the need for any kind of registration by the directors,
as the market transactions will all be conducted through the Depository Trust Company systems.
The registration of transfers may, on 14 calendar
days’ notice being given by advertisement in one or more newspapers or by electronic means, be suspended and our register of members
closed at such times and for such periods as our board of directors may from time to time determine. The registration of transfers, however,
may not be suspended, and the register may not be closed, for more than 30 days in any year.
Inspection of Books and Records
Holders of our Class A Ordinary Shares and Class
B Ordinary Shares will have no general right under the Cayman Companies Act to inspect or obtain copies of our register of members or
our corporate records.
General Meetings
As a Cayman Islands exempted company, we are not
obligated by the Cayman Companies Act to call shareholders’ annual general meetings; accordingly, we may, but shall not be obliged
to, in each year hold a general meeting as an annual general meeting. Any annual general meeting held shall be held at such time and place
as may be determined by our board of directors. All general meetings other than annual general meetings shall be called extraordinary
general meetings.
The directors may convene general meetings whenever
they think fit. General meetings shall also be convened on the written requisition of one or more of the shareholders entitled to attend
and vote at our general meetings who (together) hold not less than ten percent of the rights to vote at such general meeting in accordance
with the notice provisions in the articles, specifying the purpose of the meeting and signed by each of the shareholders making the requisition.
If the directors do not convene such meeting for a date not later than 21 clear days’ after the date of receipt of the written requisition,
those shareholders who requested the meeting may convene the general meeting themselves within three months after the end of such period
of 21 clear days in which case reasonable expenses incurred by them as a result of the directors failing to convene a meeting shall be
reimbursed by us.
At least 14 clear days’ notice of an extraordinary
general meeting and 21 clear days’ notice of an annual general meeting shall be given to shareholders entitled to attend and vote
at such meeting. The notice shall specify the place, the day and the hour of the meeting and the general nature of that business. In addition,
if a resolution is proposed as a special resolution, the text of that resolution shall be given to all shareholders. Notice of every general
meeting shall also be given to the directors and our auditors.
Subject to the Cayman Companies Act and with the
consent of the shareholders who, individually or collectively, hold at least 90 percent of the voting rights of all those who have a right
to vote at a general meeting, a general meeting may be convened on shorter notice.
A quorum shall consist of the presence (whether
in person or represented by proxy) of one or more shareholders holding shares that represent not less than one-third of the outstanding
shares carrying the right to vote at such general meeting.
If, within 15 minutes from the time appointed
for the general meeting, or at any time during the meeting, a quorum is not present, the meeting, if convened upon the requisition of
shareholders, shall be cancelled. In any other case, it shall stand adjourned to the same time and place seven days or to such other time
or place as is determined by the directors.
The chairman may, with the consent of a meeting
at which a quorum is present, adjourn the meeting. When a meeting is adjourned for seven days or more, notice of the adjourned meeting
shall be given in accordance with the articles.
At any general meeting a resolution put to the
vote of the meeting shall be decided on a show of hands, unless a poll is (before, or on, the declaration of the result of the show of
hands) demanded by the chairman of the meeting or by at least two shareholders having the right to vote on the resolutions or one or more
shareholders present who together hold not less than ten percent of the voting rights of all those who are entitled to vote on the resolution.
Unless a poll is so demanded, a declaration by the chairman as to the result of a resolution and an entry to that effect in the minutes
of the meeting, shall be conclusive evidence of the outcome of a show of hands, without proof of the number or proportion of the votes
recorded in favor of, or against, that resolution.
If a poll is duly demanded it shall be taken in
such manner as the chairman directs and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was
demanded.
In the case of an equality of votes, whether on
a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded, shall
not be entitled to a second or casting vote.
Directors
We may by ordinary resolution, from time to time,
fix the maximum and minimum number of directors to be appointed. Under the Articles, we are required to have a minimum of one director
and the maximum number of Directors shall be unlimited.
A director may be appointed by ordinary resolution
or by the directors. Any appointment may be to fill a vacancy or as an additional director.
Unless the remuneration of the directors is determined
by the shareholders by ordinary resolution, the directors shall be entitled to such remuneration as the directors may determine.
The shareholding qualification for directors may
be fixed by our shareholders by ordinary resolution and unless and until so fixed no share qualification shall be required.
Unless removed or re-appointed, each director
shall be appointed for a term expiring at the next-following annual general meeting, if one is held. At any annual general meeting held,
our directors will be elected by an ordinary resolution of our shareholders. At each annual general meeting, each director so elected
shall hold office for a one-year term and until the election of their respective successors in office or removed.
A director may be removed by ordinary resolution.
A director may at any time resign or retire from
office by giving us notice in writing. Unless the notice specifies a different date, the director shall be deemed to have resigned on
the date that the notice is delivered to us.
Subject to the provisions of the articles, the
office of a director may be terminated forthwith if:
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the director is prohibited by the law of the Cayman Islands from acting as a director; |
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the director is made bankrupt or makes an arrangement or composition with his creditors generally; |
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the director resigns office by notice to us; |
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the director only held office as a director for a fixed term and such term expires; |
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in the opinion of a registered medical practitioner by whom the director is being treated the director becomes physically or mentally incapable of acting as a director; |
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the director is given notice by the majority of the other directors (not being less than two in number) to vacate office (without prejudice to any claim for damages for breach of any agreement relating to the provision of the services of such director); |
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the director is made subject to any law relating to mental health or incompetence, whether by court order or otherwise; or |
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without the consent of the other directors, the director is absent from meetings of directors for continuous period of six months. |
Each of the compensation committee and the nominating
and corporate governance committee shall consist of at least three directors and the majority of the committee members shall be independent
within the meaning of Section 5605(a)(2) of the Nasdaq listing rules. The audit committee shall consist of at least three directors, all
of whom shall be independent within the meaning of Section 5605(a)(2) of the Nasdaq listing rules and will meet the criteria for independence
set forth in Rule 10A-3 or Rule 10C-1 of the Exchange Act.
Powers and Duties of Directors
Subject to the provisions of the Cayman Companies
Act and our amended and restated memorandum and articles of association, our business shall be managed by the directors, who may exercise
all our powers. No prior act of the directors shall be invalidated by any subsequent alteration of our memorandum or articles of association.
To the extent allowed by the Cayman Companies Act, however, shareholders may by special resolution validate any prior or future act of
the directors which would otherwise be in breach of their duties.
The directors may delegate any of their powers
to any committee consisting of one or more persons who need not be shareholders and may include non-directors so long as the majority
of those persons are directors; any committee so formed shall in the exercise of the powers so delegated conform to any regulations that
may be imposed on it by the directors. Upon the initial closing of this offering, our board of directors will have established an audit
committee, compensation committee, and nomination and corporate governance committee.
The board of directors may establish any local
or divisional board of directors or agency and delegate to it its powers and authorities (with power to sub-delegate) for managing any
of our affairs whether in the Cayman Islands or elsewhere and may appoint any persons to be members of a local or divisional board of
directors, or to be managers or agents, and may fix their remuneration.
The directors may from time to time and at any
time by power of attorney or in any other manner they determine appoint any person, either generally or in respect of any specific matter,
to be our agent with or without authority for that person to delegate all or any of that person’s powers.
The directors may from time to time and at any
time by power of attorney or in any other manner they determine appoint any person, whether nominated directly or indirectly by the directors,
to be our attorney or our authorized signatory and for such period and subject to such conditions as they may think fit. The powers, authorities
and discretions, however, must not exceed those vested in, or exercisable, by the directors under the articles.
The board of directors may remove any person so
appointed and may revoke or vary the delegation.
The directors may exercise all of our powers to
borrow money and to mortgage or charge its undertaking, property and assets both present and future and uncalled capital or any part thereof,
to issue debentures and other securities whether outright or as collateral security for any debt, liability or obligation of ours or our
parent undertaking (if any) or any subsidiary undertaking of us or of any third party.
A director shall not, as a director, vote in respect
of any contract, transaction, arrangement or proposal in which he has an interest which (together with any interest of any person connected
with him) is a material interest (otherwise than by virtue of his interests, direct or indirect, in shares or debentures or other securities
of, or otherwise in or through, us) and if the director shall do so their vote shall not be counted, nor in relation thereto shall the
director be counted in the quorum present at the meeting, but (in the absence of some other material interest than is mentioned below)
none of these prohibitions shall apply to:
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the giving of any security, guarantee or indemnity in respect of: |
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money lent or obligations incurred by the director or by any other person for our benefit or any of our subsidiaries; or |
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a debt or obligation of ours or any of our subsidiaries for which the director has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security; |
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where we or any of our subsidiaries is offering securities in which offer the director is or may be entitled to participate as a holder of securities or in the underwriting or sub-underwriting of which the director is to or may participate; |
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any contract, transaction, arrangement or proposal affecting any other body corporate in which the director is interested, directly or indirectly and whether as an officer, shareholder, creditor or otherwise howsoever, provided that the director (together with persons connected with the director) does not to the director’s knowledge hold an interest representing one percent or more of any class of the equity share capital of such body corporate (or of any third body corporate through which the director’s interest is derived) or of the voting rights available to shareholders of the relevant body corporate; |
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any act or thing done or to be done in respect of any arrangement for the benefit of the employees of us or any of our subsidiaries under which he is not accorded as a director any privilege or advantage not generally accorded to the employees to whom such arrangement relates; or |
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any matter connected with the purchase or maintenance for any director of insurance against any liability or (to the extent permitted by the Cayman Companies Act) indemnities in favor of directors, the funding of expenditure by one or more directors in defending proceedings against them or the doing of anything to enable such director or directors to avoid incurring such expenditure. |
A director may, as a director, vote (and be counted
in the quorum) in respect of any contract, transaction, arrangement or proposal in which the director has an interest which is not a material
interest or as described above.
Capitalization of Profits
The directors may resolve to capitalize:
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any part of our profits not required for paying any preferential dividend (whether or not those profits are available for distribution); or |
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any sum standing to the credit of our share premium account or capital redemption reserve, if any. |
The amount resolved to be capitalized must be
appropriated to the shareholders who would have been entitled to it had it been distributed by way of dividend and in the same proportions.
Liquidation Rights
If we are wound up, the shareholders may, subject
to the articles and any other sanction required by the Cayman Companies Act, pass a special resolution allowing the liquidator to do either
or both of the following:
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to divide in specie among the shareholders the whole or any part of our assets and, for that purpose, to value any assets and to determine how the division shall be carried out as between the shareholders or different classes of shareholders; and |
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to vest the whole or any part of the assets in trustees for the benefit of shareholders and those liable to contribute to the winding up. |
The directors have the authority to present a
petition for our winding up to the Grand Court of the Cayman Islands on our behalf without the sanction of a resolution passed at a general
meeting.
Register of Members
Under the Cayman Companies Act, we must keep a
register of members and there should be entered therein:
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the names and addresses of the members of the company, a statement of the shares held by each member, which: distinguishes each share by its number (so long as the share has a number); confirms the amount paid, or agreed to be considered as paid, on the shares of each member; confirms the number and category of shares held by each member; and confirms whether each relevant category of shares held by a member carries voting rights under the Articles, and if so, whether such voting rights are conditional; |
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the date on which the name of any person was entered on the register as a member; and |
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the date on which any person ceased to be a member. |
For these purposes, “voting rights”
means rights conferred on shareholders, including the right to appoint or remove directors, in respect of their shares to vote at general
meetings of the company on all or substantially all matters. A voting right is conditional where the voting right arises only in certain
circumstances.
Under the Cayman Companies Act, the register of
members of our Company is prima facie evidence of the matters set out therein (that is, the register of members will raise a presumption
of fact on the matters referred to above unless rebutted) and a shareholder registered in the register of members is deemed as a matter
of the Cayman Companies Act to have legal title to the shares as set against its name in the register of members. Upon the completion
of this offering, the register of members will be immediately updated to record and give effect to the issuance of shares by us to the
custodian or its nominee. Once our register of members has been updated, the shareholders recorded in the register of members will be
deemed to have legal title to the shares set against their name.
If the name of any person is incorrectly entered
in or omitted from our register of members, or if there is any default or unnecessary delay in entering on the register the fact of any
person having ceased to be a shareholder of our company, the person or shareholder aggrieved (or any shareholder of our Company or our
Company itself) may apply to the Grand Court of the Cayman Islands for an order that the register be rectified, and the Court may either
refuse such application or it may, if satisfied of the justice of the case, make an order for the rectification of the register.
Differences in Corporate Law
The Cayman Companies Act is derived, to a large
extent, from the older Companies Acts of England and Wales but does not follow recent United Kingdom statutory enactments, and accordingly
there are significant differences between the Cayman Companies Act and the current Companies Act of England and Wales. In addition, the
Cayman Companies Act differs from laws applicable to United States corporations and their shareholders. Set forth below is a summary of
certain significant differences between the provisions of the Cayman Companies Act applicable to us and the comparable laws applicable
to companies incorporated in the State of Delaware in the United States.
Mergers and Similar Arrangements
The Cayman Companies Act permits mergers and consolidations
between Cayman Islands companies and between Cayman Islands companies and non-Cayman Islands companies. For these purposes, (a) “merger”
means the merging of two or more constituent companies and the vesting of their undertaking, property, and liabilities in one of such
companies as the surviving company, and (b) a “consolidation” means the combination of two or more constituent companies
into a consolidated company and the vesting of the undertaking, property and liabilities of such companies to the consolidated company.
In order to effect such a merger or consolidation, the directors of each constituent company must approve a written plan of merger or
consolidation, which must then be authorized by (a) a special resolution of the shareholders of each constituent company, and (b) such
other authorization, if any, as may be specified in such constituent company’s articles of association. The plan must be filed with
the Registrar of Companies together with a declaration as to the solvency of the consolidated or surviving company, a list of the assets
and liabilities of each constituent company, and an undertaking that a copy of the certificate of merger or consolidation will be given
to the shareholders and creditors of each constituent company and that notification of the merger or consolidation will be published in
the Cayman Islands Gazette. Court approval is not required for a merger or consolidation which is effected in compliance with these statutory
procedures.
A merger between a Cayman Islands parent company
and its Cayman Islands subsidiary or subsidiaries does not require authorization by a resolution of shareholders. For this purpose, a
subsidiary is a company of which at least 90% of the issued shares entitled to vote are owned by the parent company.
The consent of each holder of a fixed or floating
security interest of a constituent company is required unless this requirement is waived by a court in the Cayman Islands.
Except in certain limited circumstances, a dissenting
shareholder of a Cayman Islands constituent company is entitled to payment of the fair value of his or her shares upon dissenting from
a merger or consolidation. The exercise of such dissenter rights will preclude the exercise by the dissenting shareholder of any other
rights to which he or she might otherwise be entitled by virtue of holding shares, except for the right to seek relief on the grounds
that the merger or consolidation is void or unlawful.
In addition, there are statutory provisions that
facilitate the reconstruction and amalgamation of companies, provided that the arrangement is approved by a majority in number of each
class of shareholders and creditors with whom the arrangement is to be made, and who must, in addition, represent three-fourths in value
of each such class of shareholders or creditors, as the case may be, that are present and voting either in person or by proxy at a meeting,
or meetings, convened for that purpose. The convening of the meetings and subsequently the arrangement must be sanctioned by the Grand
Court of the Cayman Islands. While a dissenting shareholder has the right to express to the court the view that the transaction ought
not to be approved, the court can be expected to approve the arrangement if it determines that:
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(a) |
the statutory provisions as to the required majority vote have been met; |
| |
(b) |
the shareholders have been fairly represented at the meeting in question and the statutory majority are acting bona fide without coercion of the minority to promote interests adverse to those of the class; |
| |
(c) |
the arrangement is such that may be reasonably approved by an intelligent and honest man of that class acting in respect of his interest; and |
| |
(d) |
the arrangement is not one that would more properly be sanctioned under some other provision of the Cayman Companies Act. |
When a takeover offer is made and accepted by
holders of 90% of the shares affected within four months, the offeror may, within a two-month period commencing on the expiration of such
four month period, require the holders of the remaining shares to transfer such shares on the terms of the offer. An objection can be
made to the Grand Court of the Cayman Islands but this is unlikely to succeed in the case of an offer which has been so approved unless
there is evidence of fraud, bad faith or collusion.
If an arrangement and reconstruction is thus approved,
or if a takeover offer is made and accepted, a dissenting shareholder would have no rights comparable to appraisal rights, which would
otherwise ordinarily be available to dissenting shareholders of Delaware corporations, providing rights to receive payment in cash for
the judicially determined value of the shares.
Shareholders’ Suits
In principle, we will normally be the proper plaintiff
to sue for a wrong done to us as a company, and as a general rule, a derivative action may not be brought by a minority shareholder. However,
based on English law authorities, which would in all likelihood be of persuasive authority in the Cayman Islands, the Cayman Islands courts
can be expected to follow and apply the common law principles (namely the rule in Foss v. Harbottle and the exceptions thereto)
so that a non-controlling shareholder may be permitted to commence a class action against or derivative actions in the name of the company
to challenge:
| |
(a) |
an act which is illegal or ultra vires with respect to the company and is therefore incapable of ratification by the shareholders; |
| |
(b) |
an act which, although not ultra vires, requires authorization by a qualified (or special) majority (that is, more than a simple majority) which has not been obtained; and |
| |
(c) |
an act which constitutes a “fraud on the minority” where the wrongdoers are themselves in control of the company. |
Indemnification of Directors and Executive
Officers and Limitation of Liability
Cayman Islands law does not limit the extent to
which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such
provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud
or the consequences of committing a crime. Our articles provide to the extent permitted by law, we shall indemnify each existing or former
secretary, director (including alternate director), and any of our other officers (including an investment adviser or an administrator
or liquidator) and their personal representatives against:
| |
(a) |
all actions, proceedings, costs, charges, expenses, losses, damages, or liabilities incurred or sustained by the existing or former director (including alternate director), secretary, or officer in or about the conduct of our business or affairs or in the execution or discharge of the existing or former director (including alternate director), secretary’s or officer’s duties, powers, authorities, or discretions; and |
| |
(b) |
without limitation to paragraph (a) above, all costs, expenses, losses, or liabilities incurred by the existing or former director (including alternate director), secretary, or officer in defending (whether successfully or otherwise) any civil, criminal, administrative, or investigative proceedings (whether threatened, pending or completed) concerning us or our affairs in any court or tribunal, whether in the Cayman Islands or elsewhere. |
No such existing or former director (including
alternate director), secretary, or officer, however, shall be indemnified in respect of any matter arising out of his own dishonesty.
To the extent permitted by law, we may make a
payment, or agree to make a payment, whether by way of advance, loan, or otherwise, for any legal costs incurred by an existing or former
director (including alternate director), secretary, or any of our officers in respect of any matter identified in above on condition that
the director (including alternate director), secretary, or officer must repay the amount paid by us to the extent that it is ultimately
found not liable to indemnify the director (including alternate director), the secretary, or that officer for those legal costs.
This standard of conduct is generally the same
as permitted under the Delaware General Corporation Law for a Delaware corporation. In addition, we intend to enter into indemnification
agreements with our directors and executive officers that will provide such persons with additional indemnification beyond that provided
in our articles.
Anti-Takeover Provisions in Our Articles
Some provisions of our articles may discourage,
delay, or prevent a change in control of our company or management that shareholders may consider favorable, including provisions that
authorize our board of directors to issue shares at such times and on such terms and conditions as the board of directors may decide without
any further vote or action by our shareholders.
Under the Cayman Companies Act, our directors
may only exercise the rights and powers granted to them under our articles for what they believe in good faith to be in the best interests
of our company and for a proper purpose.
Directors’ Fiduciary Duties
Under Delaware corporate law, a director of a
Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components: the duty of care and
the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily prudent person would
exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to shareholders, all material information
reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he or she reasonably
believes to be in the best interests of the corporation. He or she must not use his or her corporate position for personal gain or advantage.
This duty prohibits self-dealing by a director and mandates that the best interests of the corporation and its shareholders take precedence
over any interest possessed by a director, officer, or controlling shareholder and not shared by the shareholders generally. In general,
actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken
was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary
duties. Should such evidence be presented concerning a transaction by a director, a director must prove the procedural fairness of the
transaction, and that the transaction was of fair value to the corporation.
As a matter of Cayman Islands law, a director
owes three types of duties to the company: (i) statutory duties, (ii) fiduciary duties, and (iii) common law duties. The
Cayman Companies Act imposes a number of statutory duties on a director. A Cayman Islands director’s fiduciary duties are not codified,
however the courts of the Cayman Islands have held that a director owes the following fiduciary duties (a) a duty to act in what
the director bona fide considers to be in the best interests of the company, (b) a duty to exercise their powers for the purposes
they were conferred, (c) a duty to avoid fettering his or her discretion in the future, and (d) a duty to avoid conflicts of
interest and of duty. The common law duties owed by a director are those to act with skill, care, and diligence that may reasonably be
expected of a person carrying out the same functions as are carried out by that director in relation to the company and, also, to act
with the skill, care, and diligence in keeping with a standard of care commensurate with any particular skill they have which enables
them to meet a higher standard than a director without those skills. In fulfilling their duty of care to us, our directors must ensure
compliance with our articles, as amended and restated from time to time. We have the right to seek damages if a duty owed by any of our
directors is breached.
Shareholder Proposals
Under the Delaware General Corporation Law, a
shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions
in the governing documents. The Delaware General Corporation Law does not provide shareholders an express right to put any proposal before
the annual meeting of shareholders, but in keeping with common law, Delaware corporations generally afford shareholders an opportunity
to make proposals and nominations provided that they comply with the notice provisions in the certificate of incorporation or bylaws.
A special meeting may be called by the board of directors or any other person authorized to do so in the governing documents, but shareholders
may be precluded from calling special meetings.
The Cayman Companies Act provides shareholders
with only limited rights to requisition a general meeting, and does not provide shareholders with any right to put any proposal before
a general meeting. However, these rights may be provided in a company’s articles of association. Our articles provide that general
meetings shall be convened on the written requisition of one or more of the shareholders entitled to attend and vote at our general meetings
who (together) hold not less than 10 percent of the rights to vote at such general meeting in accordance with the notice provisions in
the articles of association, specifying the purpose of the meeting and signed by each of the shareholders making the requisition. If the
directors do not convene such meeting for a date not later than 21 clear days’ after the date of receipt of the written requisition,
those shareholders who requested the meeting may convene the general meeting themselves within three months after the end of such period
of 21 clear days in which case reasonable expenses incurred by them as a result of the directors failing to convene a meeting shall be
reimbursed by us. Our articles provide no other right to put any proposals before annual general meetings or extraordinary general meetings.
As a Cayman Islands exempted company, we are not obligated by law to call shareholders’ annual general meetings. However, our corporate
governance guidelines require us to call such meetings every year.
Cumulative Voting
Under the Delaware General Corporation Law, cumulative
voting for elections of directors is not permitted unless the corporation’s certificate of incorporation specifically provides for
it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors since it permits the
minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which increases the shareholder’s
voting power with respect to electing such director. As permitted under the Cayman Companies Act, our articles do not provide for cumulative
voting. As a result, our shareholders are not afforded any less protections or rights on this issue than shareholders of a Delaware corporation.
Removal of Directors
Under the Delaware General Corporation Law, a
director of a corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares
entitled to vote, unless the certificate of incorporation provides otherwise. Subject to the provisions of our articles (which include
the removal of a director by ordinary resolution), the office of a director may be terminated forthwith if (a) he is prohibited by
the laws of the Cayman Islands from acting as a director, (b) he is made bankrupt or makes an arrangement or composition with his
creditors generally, (c) he resigns his office by notice to us, (d) he only held office as a director for a fixed term and such
term expires, (e) in the opinion of a registered medical practitioner by whom he is being treated he becomes physically or mentally
incapable of acting as a director, (f) he is given notice by the majority of the other directors (not being less than two in number)
to vacate office (without prejudice to any claim for damages for breach of any agreement relating to the provision of the services of
such director), (g) he is made subject to any law relating to mental health or incompetence, whether by court order or otherwise,
or (h) without the consent of the other directors, he is absent from meetings of directors for continuous period of six months.
Transactions with Interested Shareholders
The Delaware General Corporation Law contains
a business combination statute applicable to Delaware public corporations whereby, unless the corporation has specifically elected not
to be governed by such statute by amendment to its certificate of incorporation or bylaws that is approved by its shareholders, it is
prohibited from engaging in certain business combinations with an “interested shareholder” for three years following the date
that such person becomes an interested shareholder. An interested shareholder generally is a person or a group who or which owns or owned
15% or more of the target’s outstanding voting stock or who or which is an affiliate or associate of the corporation and owned 15%
or more of the corporation’s outstanding voting stock within the past three years. This has the effect of limiting the ability of
a potential acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does
not apply if, among other things, prior to the date on which such shareholder becomes an interested shareholder, the board of directors
approves either the business combination or the transaction which resulted in the person becoming an interested shareholder. This encourages
any potential acquirer of a Delaware corporation to negotiate the terms of any acquisition transaction with the target’s board of
directors.
The Cayman Companies Act has no comparable statute.
As a result, we cannot avail ourselves of the types of protections afforded by the Delaware business combination statute. However, although
the Cayman Companies Act does not regulate transactions between a company and its significant shareholders, under Cayman Islands law such
transactions must be entered into bona fide in the best interests of the company and for a proper corporate purpose and not with the effect
of constituting a fraud on the minority shareholders.
Dissolution; Winding Up
Under the Delaware General Corporation Law, unless
the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100% of the total voting
power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the
corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation a supermajority
voting requirement in connection with dissolutions initiated by the board of directors.
Under the Cayman Companies Act and our articles,
the Company may be wound up by a special resolution of our shareholders, or if the winding up is initiated by our board of directors,
by either a special resolution of our members or, if our company is unable to pay its debts as they fall due, by an ordinary resolution
of our members. In addition, a company may be wound up by an order of the courts of the Cayman Islands. The court has authority to order
winding up in a number of specified circumstances including where it is, in the opinion of the court, just and equitable to do so.
Variation of Rights of Shares
Under the Delaware General Corporation Law, a
corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class, unless the
certificate of incorporation provides otherwise. Under the Cayman Companies Act and our articles, if our share capital is divided into
more than one class of shares, the rights attaching to any class of share (unless otherwise provided by the terms of issue of the shares
of that class) may be varied either with the consent in writing of the holders of not less than two-thirds of the issued shares of that
class, or with the sanction of a resolution passed by a majority of not less than two-thirds of the holders of shares of the class present
in person or by proxy at a separate general meeting of the holders of shares of that class.
Amendment of Governing Documents
Under the Delaware General Corporation Law, a
corporation’s certificate of incorporation may be amended only if adopted and declared advisable by the board of directors and approved
by a majority of the outstanding shares entitled to vote, and the bylaws may be amended with the approval of a majority of the outstanding
shares entitled to vote and may, if so provided in the certificate of incorporation, also be amended by the board of directors. Under
the Cayman Companies Act, our articles may only be amended by special resolution of our shareholders.
Anti-money Laundering—Cayman Islands
In order to comply with legislation or regulations
aimed at the prevention of money laundering, we may be required to adopt and maintain anti-money laundering procedures and may require
subscribers to provide evidence to verify their identity. Where permitted, and subject to certain conditions, we may also delegate the
maintenance of our anti-money laundering procedures (including the acquisition of due diligence information) to a suitable person.
We reserve the right to request such information
as is necessary to verify the identity of a subscriber. In the event of delay or failure on the part of the subscriber in producing any
information required for verification purposes, we may refuse to accept the application, in which case any funds received will be returned
without interest to the account from which they were originally debited.
We also reserve the right to refuse to make any
redemption payment to a shareholder if our directors or officers suspect or are advised that the payment of redemption proceeds to such
shareholder might result in a breach of applicable anti-money laundering or other laws or regulations by any person in any relevant jurisdiction,
or if such refusal is considered necessary or appropriate to ensure our compliance with any such laws or regulations in any applicable
jurisdiction.
If any person resident in the Cayman Islands knows
or suspects or has reason for knowing or suspecting that another person is engaged in criminal conduct or is involved with terrorism or
terrorist property and the information for that knowledge or suspicion came to their attention in the course of their business in the
regulated sector, or other trade, profession, business or employment, the person will be required to report such knowledge or suspicion
to (i) a nominated officer (appointed in accordance with the Proceeds of Crime Act (Revised) of the Cayman Islands) or the Financial
Reporting Authority of the Cayman Islands, pursuant to the Proceeds of Crime Act (Revised), if the disclosure relates to criminal conduct
or money laundering or (ii) to a police constable or a nominated officer (pursuant to the Terrorism Act (Revised) of the Cayman Islands)
or the Financial Reporting Authority, pursuant to the Terrorism Act (Revised), if the disclosure relates to involvement with terrorism
or terrorist financing and terrorist property. Such a report shall not be treated as a breach of confidence or of any restriction upon
the disclosure of information imposed by any enactment or otherwise.
Data Protection in the Cayman Islands –
Privacy Notice
This privacy notice explains the manner in which
we collect, process, and maintain personal data about investors of the Company pursuant to the Data Protection Act, 2021 of the Cayman
Islands, as amended from time to time and any regulations, codes of practice, or orders promulgated pursuant thereto (the “DPA”).
We are committed to processing personal data in
accordance with the DPA. In our use of personal data, we will be characterized under the DPA as a “data controller,” whilst
certain of our service providers, affiliates, and delegates may act as “data processors” under the DPA. These service providers
may process personal information for their own lawful purposes in connection with services provided to us.
By virtue of your investment in the Company, we
and certain of our service providers may collect, record, store, transfer, and otherwise process personal data by which individuals may
be directly or indirectly identified.
Your personal data will be processed fairly and
for lawful purposes, including (a) where the processing is necessary for us to perform a contract to which you are a party or for
taking pre-contractual steps at your request, (b) where the processing is necessary for compliance with any legal, tax, or regulatory
obligation to which we are subject, or (c) where the processing is for the purposes of legitimate interests pursued by us or by a
service provider to whom the data are disclosed. As a data controller, we will only use your personal data for the purposes for which
we collected it. If we need to use your personal data for an unrelated purpose, we will contact you.
We anticipate that we will share your personal
data with our service providers for the purposes set out in this privacy notice. We may also share relevant personal data where it is
lawful to do so and necessary to comply with our contractual obligations or your instructions or where it is necessary or desirable to
do so in connection with any regulatory reporting obligations. In exceptional circumstances, we will share your personal data with regulatory,
prosecuting, and other governmental agencies or departments, and parties to litigation (whether pending or threatened), in any country
or territory including to any other person where we have a public or legal duty to do so (e.g. to assist with detecting and preventing
fraud, tax evasion, and financial crime or compliance with a court order).
Your personal data shall not be held by the Company
for longer than necessary with regard to the purposes of the data processing.
We will not sell your personal data. Any transfer
of personal data outside of the Cayman Islands shall be in accordance with the requirements of the DPA. Where necessary, we will ensure
that separate and appropriate legal agreements are put in place with the recipient of that data.
We will only transfer personal data in accordance
with the requirements of the DPA, and will apply appropriate technical and organizational information security measures designed to protect
against unauthorized or unlawful processing of the personal data and against the accidental loss, destruction, or damage to the personal
data.
If you are a natural person, this will affect
you directly. If you are a corporate investor (including, for these purposes, legal arrangements such as trusts or exempted limited partnerships)
that provides us with personal data on individuals connected to you for any reason in relation to your investment into the Company, this
will be relevant for those individuals and you should inform such individuals of the content.
You have certain rights under the DPA, including
(a) the right to be informed as to how we collect and use your personal data (and this privacy notice fulfils our obligation in this
respect), (b) the right to obtain a copy of your personal data, (c) the right to require us to stop direct marketing, (d) the
right to have inaccurate or incomplete personal data corrected, (e) the right to withdraw your consent and require us to stop processing
or restrict the processing, or not begin the processing of your personal data, (f) the right to be notified of a data breach (unless
the breach is unlikely to be prejudicial), (g) the right to obtain information as to any countries or territories outside the Cayman
Islands to which we, whether directly or indirectly, transfer, intend to transfer, or wish to transfer your personal data, general measures
we take to ensure the security of personal data, and any information available to us as to the source of your personal data, (h) the
right to complain to the Office of the Ombudsman of the Cayman Islands, and (i) the right to require us to delete your personal data
in some limited circumstances.
If you consider that your personal data has not
been handled correctly, or you are not satisfied with our responses to any requests you have made regarding the use of your personal data,
you have the right to complain to the Cayman Islands’ Ombudsman. The Ombudsman can be contacted by calling +1 (345) 946-6283 or
by email at info@ombudsman.ky.
History of Share Capital
The following is a summary of our share issuances
for the last three years.
On January 3, 2020, 9,165,000 ordinary shares,
par value $0.001 per share, were held by Joya Enterprises Limited.
As part of the Reorganization, we undertook the
following corporate actions:
Share Issuances in February 2020
On February 22, 2020, we issued the following
ordinary shares, par value $0.001 per share, to certain founding shareholders of Pop Culture Group:
| Purchaser | |
Number of
Ordinary
Shares | | |
Consideration | |
| Joya Enterprises Limited | |
| 165,000 | | |
$ | 165 | |
| Victory Quest Industries Limited | |
| 1,653,911 | | |
$ | 1,654 | |
| Billion Hill Investment Corporation | |
| 1,502,000 | | |
$ | 1,502 | |
| Bofeng Holdings Limited | |
| 1,007,700 | | |
$ | 1,008 | |
| Sense Venture International Limited | |
| 1,007,700 | | |
$ | 1,008 | |
| Dragon Bright Asia Corporation | |
| 400,000 | | |
$ | 400 | |
| Wealth Progress International Corporation | |
| 40,000 | | |
$ | 40 | |
Re-designation of Ordinary Shares in April
2020
On April 28, 2020, our shareholders approved the
re-designation of 5,763,077 of our issued ordinary shares held by Joya Enterprises Limited into 5,763,077 Class B Ordinary Shares.
On April 28, 2020, our shareholders approved the
re-designation of certain already issued ordinary shares into Class A Ordinary Shares as set out in the table below:
| Shareholder | |
Number of
Class A
Ordinary
Shares | |
| Joya Enterprises Limited | |
| 3,566,923 | |
| Victory Quest Industries Limited | |
| 1,653,911 | |
| Billion Hill Investment Corporation | |
| 1,502,000 | |
| Bofeng Holdings Limited | |
| 1,007,700 | |
| Sense Venture International Limited | |
| 1,007,700 | |
| Dragon Bright Asia Corporation | |
| 400,000 | |
| Wealth Progress International Corporation | |
| 40,000 | |
Share Issuances and Transfers in May 2020
On May 30, 2020, we issued Class A Ordinary Shares
to the following shareholders pursuant to certain share purchase agreements entered into on September 30, 2019:
| Purchaser | |
Number of
Class A
Ordinary
Shares | | |
Consideration | |
| Monica Hon Yau Tse | |
| 190,000 | | |
$ | 241,515.19 | |
| Yuen Ching Wong | |
| 190,000 | | |
$ | 241,515.19 | |
| Yee Man Yau | |
| 190,000 | | |
$ | 241,515.19 | |
| Chau Hung Yeung | |
| 190,000 | | |
$ | 241,515.19 | |
| New Rise International Limited | |
| 583,600 | | |
$ | 741,832.57 | |
On May 30, 2020, we issued Class A Ordinary Shares
to the following shareholders, who are original shareholders of Xiamen Pop Culture:
| Purchaser | |
Number of
Class A
Ordinary
Shares | | |
Consideration | |
| Hengzhang Qiu | |
| 100,000 | | |
$ | 100 | |
| Yuling Yan | |
| 400,000 | | |
$ | 400 | |
On May 30, 2020, our board of directors approved
the following transfers of Class A Ordinary Shares:
| Transferor |
|
Transferee |
|
Number of Class A
Ordinary Shares |
|
| Joya Enterprises Limited |
|
China Young Group Limited |
|
|
2,180,000 |
|
| Joya Enterprises Limited |
|
Chen Li |
|
|
200,000 |
|
| Joya Enterprises Limited |
|
Yi Zhang |
|
|
100,000 |
|
| Joya Enterprises Limited |
|
Yamo Zhao |
|
|
100,000 |
|
| Joya Enterprises Limited |
|
Qiuyan Zhang |
|
|
10,000 |
|
| Joya Enterprises Limited |
|
Lingyun Wu |
|
|
936,923 |
|
| Joya Enterprises Limited |
|
Wenjuan Qiu |
|
|
40,000 |
|
| Billion Hill Investment Corporation |
|
Fengying Qiu |
|
|
182,000 |
|
| Billion Hill Investment Corporation |
|
Chunhui Liu |
|
|
168,000 |
|
| Billion Hill Investment Corporation |
|
Shuangyan Qiu |
|
|
175,000 |
|
| Billion Hill Investment Corporation |
|
Xingbin Qiu |
|
|
175,000 |
|
| Billion Hill Investment Corporation |
|
Qiuyan Zhang |
|
|
152,600 |
|
| Billion Hill Investment Corporation |
|
Ronghui Qiu |
|
|
150,000 |
|
| Billion Hill Investment Corporation |
|
Meihua Li |
|
|
100,000 |
|
| Billion Hill Investment Corporation |
|
Meirong Qiu |
|
|
100,000 |
|
| Victory Quest Industries Limited |
|
HK Weiyi Culture Media Limited |
|
|
632,911 |
|
| Victory Quest Industries Limited |
|
HK Longren Number Media Limited |
|
|
320,000 |
|
| Victory Quest Industries Limited |
|
Xiaosong Ye |
|
|
300,000 |
|
| Victory Quest Industries Limited |
|
Hailong Huang |
|
|
80,000 |
|
| Victory Quest Industries Limited |
|
Lei Wang |
|
|
68,000 |
|
| Victory Quest Industries Limited |
|
Juyuan Hong |
|
|
20,000 |
|
Share Issuances in February 2021
On February 9, 2021, we issued Class A Ordinary
Shares to the following shareholders of Xiamen Pop Culture to acquire 6.45% non-controlling interests in Xiamen Pop Culture:
| Purchaser | |
Number of
Class A
Ordinary
Shares | | |
Consideration | |
| Bravo Great Group Limited | |
| 730,000 | | |
$ | 730 | |
| Huadi Qiu | |
| 300,000 | | |
$ | 300 | |
| Jiapeng Lin | |
| 35,089 | | |
$ | 35.089 | |
Share Issuances in Our Initial Public Offering
On July 2, 2021, at the closing of our initial
public offering, we issued and sold a total of 6,200,000 Class A Ordinary Shares at $6.00 per share on a firm commitment basis.
DESCRIPTION OF DEBT SECURITIES
General
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 or subordinated debt securities. Debt securities will be issued under an indenture between
us and a trustee to be named therein. We have filed the forms of indentures as exhibits to the registration statement of which this prospectus
is a part. We may issue debt securities which may or may not be converted into our Class A Ordinary Shares or Class B Ordinary Shares.
It is likely that convertible debt securities will not be issued under an indenture. We may issue the debt securities independently or
together with any underlying securities, and debt securities may be attached or separate from the underlying securities.
The following description is a summary of selected
provisions relating to the debt securities that we may issue. The summary is not complete. When debt securities are offered in the future,
a prospectus supplement, information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular
terms of those securities and the extent to which these general provisions may apply. The specific terms of the debt securities as described
in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may
modify or replace the general terms described in this section.
This summary and any description of debt securities
in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified
in its entirety by reference to all the provisions of any specific debt securities document or agreement. We will file each of these documents,
as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is
a part on or before the time we issue a series of debt securities. See “Where You Can Find Additional Information” and “Incorporation
of Documents by Reference” below for information on how to obtain a copy of a debt securities document when it is filed.
When we refer to a series of debt securities,
we mean all debt securities issued as part of the same series under the applicable indenture.
Terms
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus, may describe the terms of any debt securities that we may offer, including, but
not limited to, the following:
| |
● |
the title of the debt securities; |
| |
|
|
| |
● |
the total amount of the debt securities; |
| |
|
|
| |
● |
the amount or amounts of the debt securities will be issued and interest rate; |
| |
|
|
| |
● |
the conversion price at which the debt securities may be converted; |
| |
|
|
| |
● |
the date on which the right to convert the debt securities will commence and the date on which the right will expire; |
| |
|
|
| |
● |
if applicable, the minimum or maximum amount of debt securities that may be converted at any one time; |
| |
|
|
| |
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if applicable, a discussion of material federal income tax consideration; |
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if applicable, the terms of the payoff of the debt securities; |
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the identity of the indenture agent, if any; |
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the procedures and conditions relating to the conversion of the debt securities; and |
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any other terms of the debt securities, including terms, procedure and limitation relating to the exchange or conversion of the debt securities. |
Form, Exchange, and Transfer
We may issue the debt securities in registered
form or bearer form. Debt securities issued in registered form, i.e., book-entry form, will be represented by a global security registered
in the name of a depository, which will be the holder of all the debt securities represented by the global security. Those investors who
own beneficial interests in global debt securities will do so through participants in the depository’s system, and the rights of
these indirect owners will be governed solely by the applicable procedures of the depository and its participants. In addition, we may
issue debt securities in non-global form, i.e., bearer form. If any debt securities are issued in non-global form, debt securities certificates
may be exchanged for new debt securities certificates of different denominations, and holders may exchange, transfer, or convert their
debt securities at the debt securities agent’s office or any other office indicated in the applicable prospectus supplement, information
incorporated by reference or free writing prospectus.
Prior to the conversion of their debt securities,
holders of debt securities convertible for Class A Ordinary Shares or Class B Ordinary Shares will not have any rights of holders of Class
A Ordinary Shares or Class B Ordinary Shares, and will not be entitled to dividend payments, if any, or voting rights of the Class A Ordinary
Shares or Class B Ordinary Shares.
Conversion of Debt Securities
A debt security may entitle the holder to purchase,
in exchange for the extinguishment of debt, an amount of securities at a conversion price that will be stated in the debt security. Debt
securities may be converted at any time up to the close of business on the expiration date set forth in the terms of such debt security.
After the close of business on the expiration date, debt securities not exercised will be paid in accordance with their terms.
Debt securities may be converted as set forth
in the applicable offering material. Upon receipt of a notice of conversion properly completed and duly executed at the corporate trust
office of the indenture agent, if any, or to us, we will forward, as soon as practicable, the securities purchasable upon such exercise.
If less than all of the debt security represented by such security is converted, a new debt security will be issued for the remaining
debt security.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase our securities.
We may issue the warrants independently or together with any underlying securities, and the warrants may be attached or separate from
the underlying securities. We may also issue a series of warrants under a separate warrant agreement to be entered into between us and
a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any
obligation or relationship of agency for or with holders or beneficial owners of warrants.
The following description is a summary of selected
provisions relating to the warrants that we may issue. The summary is not complete. When warrants are offered in the future, a prospectus
supplement, information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular terms of those
securities and the extent to which these general provisions may apply. The specific terms of the warrants as described in a prospectus
supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace
the general terms described in this section.
This summary and any description of warrants in
the applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified
in its entirety by reference to all the provisions of any specific warrant document or agreement, if applicable. We will file each of
these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this
prospectus is a part on or before the time we issue a series of warrants. See “Where You Can Find Additional Information”
and “Incorporation of Documents by Reference” below for information on how to obtain a copy of a warrant document when it
is filed.
When we refer to a series of warrants, we mean
all warrants issued as part of the same series under the applicable warrant agreement.
Terms
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus, may describe the terms of any warrants that we may offer, including, but not limited
to, the following:
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the title of the warrants; |
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the total number of warrants; |
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the price or prices at which the warrants will be issued; |
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the price or prices at which the warrants may be exercised; |
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the currency or currencies that investors may use to pay for 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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whether the warrants will be issued in registered form or bearer form; |
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information with respect to book-entry procedures, if any; |
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if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
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if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; |
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if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; |
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if applicable, a discussion of material federal income tax considerations; |
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if applicable, the terms of redemption of the warrants; |
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the identity of the warrant agent, if any; |
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the procedures and conditions relating to the exercise of the warrants; 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. |
Warrant Agreement
We may issue the warrants in one or more series
under one or more warrant agreements, each to be entered into between us and a bank, trust company, or other financial institution as
warrant agent. We may add, replace, or terminate warrant agents from time to time. We may also choose to act as our own warrant agent
or may choose one of our subsidiaries to do so.
The warrant agent under a warrant agreement will
act solely as our agent in connection with the warrants issued under that agreement. Any holder of warrants may, without the consent of
any other person, enforce by appropriate legal action, on its own behalf, its right to exercise those warrants in accordance with their
terms.
Form, Exchange, and Transfer
We may issue the warrants in registered form or
bearer form. Warrants issued in registered form, i.e., book-entry form, will be represented by a global security registered in the name
of a depository, which will be the holder of all the warrants represented by the global security. Those investors who own beneficial interests
in a global warrant will do so through participants in the depository’s system, and the rights of these indirect owners will be
governed solely by the applicable procedures of the depository and its participants. In addition, we may issue warrants in non-global
form, i.e., bearer form. If any warrants are issued in non-global form, warrant certificates may be exchanged for new warrant certificates
of different denominations, and holders may exchange, transfer, or exercise their warrants at the warrant agent’s office or any
other office indicated in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus.
Prior to the exercise of their warrants, holders
of warrants exercisable for Class A Ordinary Shares or Class B Ordinary Shares will not have any rights of holders of Class A Ordinary
Shares or Class B Ordinary Shares and will not be entitled to dividend payments, if any, or voting rights of the Class A Ordinary Shares
or Class B Ordinary Shares.
Exercise of Warrants
A warrant will entitle the holder to purchase
for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable
prospectus supplement, information incorporated by reference, or free writing prospectus. Warrants may be exercised at any time up to
the close of business on the expiration date set forth in the applicable offering material. After the close of business on the expiration
date, unexercised warrants will become void. Warrants may be redeemed as set forth in the applicable offering material.
Warrants may be exercised as set forth in the
applicable offering material. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in the applicable offering material, we will forward, as soon as practicable,
the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised,
a new warrant certificate will be issued for the remaining warrants.
DESCRIPTION OF RIGHTS
We may issue rights to purchase our securities.
The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we
may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters
or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of rights will
be issued under a separate rights agent agreement to be entered into between us and one or more banks, trust companies, or other financial
institutions, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent
in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders of rights
certificates or beneficial owners of rights.
The prospectus supplement relating to any rights
that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining the security holders entitled to the rights distribution; |
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the aggregate number of rights issued and the aggregate amount of securities purchasable upon exercise of the rights; |
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the exercise price; |
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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. |
Each right would entitle the holder of the rights
to purchase for cash the principal amount of securities at the exercise price set forth in the applicable prospectus supplement. Rights
may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through agents,
underwriters, or dealers, or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable
prospectus supplement.
DESCRIPTION OF UNITS
We may issue units composed of any combination
of our securities. We will issue each unit so that the holder of the unit is also the holder of each security included in the unit. As
a result, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which
a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The following description is a summary of selected
provisions relating to units that we may offer. The summary is not complete. When units are offered in the future, a prospectus supplement,
information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular terms of those securities
and the extent to which these general provisions may apply. The specific terms of the units as described in a prospectus supplement, information
incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described
in this section.
This summary and any description of units in the
applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified in
its entirety by reference to the unit agreement, collateral arrangements, and depositary arrangements, if applicable. We will file each
of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which
this prospectus is a part on or before the time we issue a series of units. See “Where You Can Find Additional Information”
and “Incorporation of Documents by Reference” below for information on how to obtain a copy of a document when it is filed.
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus may describe:
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The designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
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Any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing the units; |
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Whether the units will be issued in fully registered or global form; and |
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Any other terms of the units. |
The applicable provisions described in this section,
as well as those described under “Description of Share Capital,” “Description of Debt Securities,” “Description
of Warrants,” and “Description of Rights” above, will apply to each unit and to each security included in each unit,
respectively.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
from time to time in one or more transactions, including, without limitation:
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through agents; |
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to or through underwriters; |
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through broker-dealers (acting as agent or principal); |
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directly by us to purchasers (including our affiliates and shareholders), through a specific bidding or auction process, a rights offering, or other method; |
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through a combination of any such methods of sale; or |
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through any other methods described in a prospectus supplement. |
The distribution of securities may be effected,
from time to time, in one or more transactions, including:
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block transactions (which may involve crosses) and transactions on Nasdaq or any other organized market where the securities may be traded; |
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
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ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The securities may be sold at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or
at negotiated prices. The consideration may be cash, extinguishment of debt, or another form negotiated by the parties. Agents, underwriters,
or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts,
concessions, or commissions to be received from us or from the purchasers of the securities. Dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act. If such dealers or agents were deemed to be underwriters, they may be
subject to statutory liabilities under the Securities Act.
We may also make direct sales through subscription
rights distributed to our existing shareholders on a pro rata basis, which may or may not be transferable. In any distribution of subscription
rights to our shareholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly
to third parties or may engage the services of one or more underwriters, dealers, or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
Some or all of the securities that we offer through
this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for
public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market
making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
Agents may, from time to time, solicit offers
to purchase the securities. If required, we will name in the applicable prospectus supplement, document incorporated by reference, or
free writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any compensation payable
to the agent. Unless otherwise indicated, any agent will be acting on a best efforts basis for the period of its appointment. Any agent
selling the securities covered by this prospectus may be deemed to be an underwriter of the securities.
If underwriters are used in an offering, securities
will be acquired by the underwriters for their own account and may be resold, 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, or under delayed delivery
contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used
in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for
the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other
underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions,
including compensation of the underwriters and dealers and the public offering price, if applicable. This prospectus, the applicable prospectus
supplement and any applicable free writing prospectus will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities,
we, or an underwriter, will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at
varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement,
document incorporated by reference, or free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase the
securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters
with respect to any resale of the securities. To the extent required, the prospectus supplement, document incorporated by reference, or
free writing prospectus, as applicable, will describe the terms of any such sales, including the terms of any bidding or auction process,
if used.
Agents, underwriters, and dealers may be entitled
under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities incurred
under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If required,
the prospectus supplement, document incorporated by reference, or free writing prospectus, as applicable, will describe the terms and
conditions of such indemnification or contribution. Some of the agents, underwriters, or dealers, or their affiliates may be customers
of, engage in transactions with or perform services for us or our subsidiaries or affiliates in the ordinary course of business.
Under the securities laws of some states, the
securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
Any person participating in the distribution of
securities registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange
Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases
and sales of any of our securities by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the
distribution of our securities to engage in market-making activities with respect to our securities.
These restrictions may affect the marketability
of our securities and the ability of any person or entity to engage in market-making activities with respect to our securities.
Certain persons participating in an offering may
engage in over-allotment, stabilizing transactions, short-covering transactions, and penalty bids in accordance with Regulation M under
the Exchange Act that stabilize, maintain, or otherwise affect the price of the offered securities. If any such activities will occur,
they will be described in the applicable prospectus supplement.
To the extent required, this prospectus may be
amended or supplemented from time to time to describe a specific plan of distribution.
TAXATION
Material income tax consequences relating to the
purchase, ownership, and disposition of the securities offered by this prospectus are set forth in “Item 10. Additional Information—E.
Taxation” in the 2021 Annual Report, which is incorporated herein by reference, as updated by our subsequent filings under the Exchange
Act that are incorporated by reference and, if applicable, in any accompanying prospectus supplement or relevant free writing prospectus.
EXPENSES
The following table sets forth the aggregate expenses
in connection with this offering, all of which will be paid by us. All amounts shown are estimates, except for the SEC registration fee.
| SEC registration fee | |
$ | 18,540 | |
| FINRA fees | |
$ | 30,500 | |
| Legal fees and expenses | |
$ | * | |
| Accounting fees and expenses | |
$ | * | |
| Printing and postage expenses | |
$ | * | |
| Miscellaneous expenses | |
$ | * | |
| Total | |
$ | * | |
| * |
To be provided by a prospectus supplement or as an exhibit to a report of foreign private issuer on Form 6-K that is incorporated by reference into this registration statement. Estimated solely for this item. Actual expenses may vary. |
MATERIAL CONTRACTS
Our material contracts are described in the documents
incorporated by reference into this prospectus. See “Incorporation of Documents by Reference” below.
MATERIAL CHANGES
Except as otherwise described in the 2021 Annual
Report, in our reports of foreign issuer on Form 6-K filed or submitted under the Exchange Act and incorporated by reference herein,
and as disclosed in this prospectus or the applicable prospectus supplement, no reportable material changes have occurred since June 30,
2021.
LEGAL MATTERS
We are being represented by Hunter Taubman Fischer &
Li LLC with respect to certain legal matters of U.S. federal securities and New York State law. The validity of the securities offered
in this offering and certain other legal matters as to Cayman Islands law will be passed upon for us by Ogier, our counsel as to Cayman
Islands law. Legal matters as to PRC laws and regulations will be passed upon for us by JT&N. If legal matters in connection with
offerings made pursuant to this prospectus are passed upon by counsel to underwriters, dealers, or agents, such counsel will be named
in the applicable prospectus supplement relating to any such offering.
EXPERTS
The consolidated financial statements in the 2021
Annual Report included in this prospectus have been so included in reliance on the report of Friedman LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting. The office of Friedman LLP is located at One
Liberty Plaza, 165 Broadway, Floor 21, New York, NY 10006.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus certain information we file with the SEC. This means that we can disclose important information to you by referring
you to those documents. Any statement contained in a document incorporated by reference in this prospectus shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained herein, or in any subsequently filed document,
which also is incorporated by reference herein, modifies or supersedes such earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We hereby incorporate by reference into this prospectus
the following documents:
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our annual report on Form 20-F for the fiscal
year ended June 30, 2021, filed with the SEC on November 10, 2021; |
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our unaudited condensed consolidated financial statements for the six months ended December 31, 2021 and 2020 on Form 6-K, filed with the SEC on May 17, 2022; |
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our reports of foreign private issuer on Form 6-K
filed with the SEC on November
10, 2021, December 1,
2021, December 7,
2021, January 6,
2022, April 8, 2022, June
1, 2022, and June 28, 2022; |
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(4) |
the description of our Class A Ordinary Shares contained in our registration statement on Form 8-A, filed with the SEC on June 25, 2021, and any amendment or report filed for the purpose of updating such description; |
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any future annual reports on Form 20-F filed with the SEC after the date of this prospectus and prior to the termination of the offering of the securities offered by this prospectus; and |
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any future reports of foreign private issuer on Form 6-K that we furnish to the SEC after the date of this prospectus that are identified in such reports as being incorporated by reference into the registration statement of which this prospectus forms a part. |
Our annual report on Form 20-F for the fiscal
year ended June 30, 2021 filed with the SEC on November 10, 2021 contains a description of our business and audited consolidated financial
statements with a report by our independent auditors. These statements were prepared in accordance with U.S. GAAP.
Unless expressly incorporated by reference, nothing
in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. Copies of all documents
incorporated by reference in this prospectus, other than exhibits to those document unless such exhibits are specially incorporated by
reference in this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives a copy of this
prospectus on the written or oral request of that person made to:
Pop Culture Group Co., Ltd
3rd Floor, No. 168, Fengqi Road
Jimei District, Xiamen City, Fujian Province
People’s Republic of China
+ 86-0592-5968169
You should rely only on the information that we
incorporate by reference or provide in this prospectus. We have not authorized anyone to provide you with different information. We are
not making any offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that
the information contained or incorporated in this prospectus by reference is accurate as of any date other than the date of the document
containing the information.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
As permitted by SEC rules, this prospectus omits
certain information and exhibits that are included in the registration statement of which this prospectus forms a part. Since this prospectus
may not contain all of the information that you may find important, you should review the full text of these documents. If we have filed
a contract, agreement, or other document as an exhibit to the registration statement of which this prospectus forms a part, you should
read the exhibit for a more complete understanding of the document or matter involved. Each statement in this prospectus, including statements
incorporated by reference as discussed above, regarding a contract, agreement, or other document is qualified in its entirety by reference
to the actual document.
We are subject to periodic reporting and other
informational requirements of the Exchange Act as applicable to foreign private issuers. Accordingly, we are required to file reports,
including annual reports on Form 20-F, and other information with the SEC. All information electronically filed with the SEC can
be inspected over the Internet at the SEC’s website at www.sec.gov.
As a foreign private issuer, we are exempt under
the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive
officers, directors, and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in
Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic or current reports and
financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
ENFORCEABILITY OF CIVIL LIABILITIES
We are incorporated under the laws of the Cayman
Islands as an exempted company with limited liability. We incorporated under the laws of the Cayman Islands because of certain benefits
associated with being a Cayman Islands company, such as political and economic stability, an effective judicial system, a favorable tax
system, the absence of foreign exchange control or currency restrictions and the availability of professional and support services. The
Cayman Islands, however, has a less developed body of securities laws as compared to the United States and provides significantly less
protection for investors than the United States. Additionally, Cayman Islands companies may not have standing to sue in the Federal courts
of the United States.
Substantially all of the assets of the PRC operating
entities are located in mainland China. In addition, all of our officers are nationals or residents of the PRC and all or a substantial portion
of their assets are located outside the United States. As a result, it may be difficult for investors to effect service of process within
the United States upon us or these persons, or to enforce against us or them judgments obtained in United States courts, including judgments
predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States.
We have appointed Cogency Global Inc. as our agent
to receive service of process with respect to any action brought against us in the United States District Court for the Southern District
of New York under the federal securities laws of the United States or of any state in the United States or any action brought against
us in the Supreme Court of the State of New York in the County of New York under the securities laws of the State of New York.
Ogier, our counsel with respect to the laws of
the Cayman Islands, and JT&N, our counsel with respect to PRC laws and regulations, have advised us that there is uncertainty as to whether the courts
of the Cayman Islands or mainland China would (i) recognize or enforce judgments of United States courts obtained against us or our directors
or officers predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States
or (ii) entertain original actions brought in the Cayman Islands or mainland China against us or our directors or officers predicated upon the
securities laws of the United States or any state in the United States.
Ogier has further advised us that there is currently
no statutory enforcement law in the Cayman Islands nor any treaty between the United States and the Cayman Islands providing for enforcement
of judgments. A judgment obtained in the United States, however, may be recognized and enforced in the courts of the Cayman Islands at
common law, without any re-examination on the merits of the underlying dispute, by an action commenced on the foreign judgment debt in
the Grand Court of the Cayman Islands, provided such judgment: (i) is given by a foreign court of competent jurisdiction; (ii) is final;
(iii) is not in respect of taxes, a fine or a penalty; and (iv) was not obtained in a manner and is not of a kind the enforcement of which
is contrary to natural justice or public policy of the Cayman Islands. Furthermore, it is uncertain that Cayman Islands courts would enforce:
(1) judgments of U.S. courts obtained in actions against us or other persons that are predicated upon the civil liability provisions of
the U.S. federal securities laws; or (2) original actions brought against us or other persons predicated upon the Securities Act. Ogier
has informed us that there is uncertainty with regard to Cayman Islands law relating to whether a judgment obtained from the U.S. courts
under civil liability provisions of the securities laws will be determined by the courts of the Cayman Islands as penal or punitive in
nature.
JT&N has further advised us that the
recognition and enforcement of foreign judgments are provided for under the PRC Civil Procedure Law. Courts in mainland China may
recognize and enforce foreign judgments in accordance with the requirements of the PRC Civil Procedure Law based either on treaties
between mainland China and the country where the judgment is made or on reciprocity between jurisdictions. There are no treaties or
other forms of reciprocity between mainland China and the United States for the mutual recognition and enforcement of court
judgments. JT&N has further advised us that under PRC laws and regulations, courts in mainland
China will not enforce a foreign judgment against us or our officers and directors if the court decides that such judgment
violates the basic principles of PRC laws and regulations or national sovereignty, security or public interest, thus making the recognition and
enforcement of a U.S. court judgment in mainland China difficult.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
Cayman Islands law does not limit the extent to
which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such
provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud
or the consequences of committing a crime. Our amended and restated articles of association provide that, to the extent permitted by law,
we shall indemnify each existing or former secretary, director (including alternate director), and any of our other officers (including
an investment adviser or an administrator or liquidator) and their personal representatives against:
(a) all actions, proceedings,
costs, charges, expenses, losses, damages, or liabilities incurred or sustained by the existing or former director (including alternate
director), secretary, or officer in or about the conduct of our business or affairs or in the execution or discharge of the existing or
former director (including alternate director)’s, secretary’s, or officer’s duties, powers, authorities, or discretions;
and
(b) without limitation to
paragraph (a) above, all costs, expenses, losses, or liabilities incurred by the existing or former director (including alternate director),
secretary, or officer in defending (whether successfully or otherwise) any civil, criminal, administrative, or investigative proceedings
(whether threatened, pending, or completed) concerning us or our affairs in any court or tribunal, whether in the Cayman Islands or elsewhere.
No such existing or former director (including
alternate director), secretary, or officer, however, shall be indemnified in respect of any matter arising out of his own dishonesty.
To the extent permitted by law, we may make a
payment, or agree to make a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by an existing secretary,
or any of our officers in respect of any matter identified in above on condition that the secretary, or officer must repay the amount
paid by us to the extent that it is ultimately found not liable to indemnify the secretary or that officer for those legal costs.
Item 9. Exhibits
| * |
To be filed, if applicable, by amendment or as an exhibit to a report filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
| ** |
Filed herewith. |
| *** |
To be filed, if necessary, on electronic Form 305b2 pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Item 10 Undertakings
| (a) | 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement. |
| (iii) | To include any material information
with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement. |
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange 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).
| (2) | That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. |
| (3) | To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | To
file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F
at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of
the Securities Act of 1933 or Rule 3-19 of Regulation S-K if such financial statements and information are contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration statement. |
| (5) | That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date. |
| (6) | That, for the purpose of determining
liability of the registrant under the Securities Act of 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. |
| (b) | That, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or
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. |
| (c) | 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 Act 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 Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Xiamen, the People’s Republic of China, on July 14, 2022.
| |
Pop Culture Group Co., Ltd |
| |
|
|
| |
By: |
/s/ Zhuoqin Huang |
| |
|
Zhuoqin Huang |
| |
|
Chief Executive Officer, Director, and
Chairman of the Board of Directors |
| |
|
(Principal Executive Officer) |
Powers of Attorney
Each person whose signature appears below constitutes
and appoints each of Zhuoqin Huang and Renrong Zhu as attorneys-in-fact with full power of substitution, for him or her in any
and all capacities, to do any and all acts and all things and to execute any and all instruments which said attorney and agent may deem
necessary or desirable to enable the registrant to comply with the Securities Act, and any rules, regulations, and requirements of the
Securities and Exchange Commission thereunder, in connection with the registration under the Securities Act of securities of the registrant,
including, without limitation, the power and authority to sign the name of each of the undersigned in the capacities indicated below to
the Registration Statement on Form F-3 (the “Registration Statement”) to be filed with the Securities and Exchange
Commission with respect to such securities, to any and all amendments or supplements to such Registration Statement, whether such amendments
or supplements are filed before or after the effective date of such Registration Statement, to any related Registration Statement filed
pursuant to Rule 462(b) under the Securities Act, and to any and all instruments or documents filed as part of or in connection with such
Registration Statement or any and all amendments thereto, whether such amendments are filed before or after the effective date of such
Registration Statement; and each of the undersigned hereby ratifies and confirms all that such attorney and agent shall do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Zhuoqin Huang |
|
Chief Executive Officer, Director, and
Chairman of the Board of Directors |
|
July 14, 2022 |
| Name: Zhuoqin Huang |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Renrong Zhu |
|
Chief Financial Officer |
|
July 14, 2022 |
| Name: Renrong Zhu |
|
(Principal Accounting and Financial Officer) |
|
|
| |
|
|
|
|
| /s/ Weiyi Lin |
|
Vice President and Director |
|
July 14, 2022 |
| Name: Weiyi Lin |
|
|
|
|
| |
|
|
|
|
| /s/ Xiaolin Hu |
|
Director |
|
July 14, 2022 |
| Name: Xiaolin Hu |
|
|
|
|
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE
UNITED STATES
Pursuant to the Securities Act of 1933, as amended,
the undersigned, the duly authorized representative in the United States of America of Pop Culture Group Co., Ltd, has signed this registration
statement or amendment thereto in New York, NY on July 14, 2022.
| |
Cogency Global Inc. |
| |
Authorized U.S. Representative |
| |
|
|
| |
By: |
/s/ Colleen A. De Vries |
| |
|
Name: |
Colleen A. De Vries |
| |
|
Title: |
Senior Vice President on behalf of Cogency Global Inc. |
II-5
Exhibit 4.5
POP CULTURE GROUP CO., LTD
(the “Issuer”)
AND
[TRUSTEE]
(the “Trustee”)
INDENTURE
Dated as of [●], 20[●]
Senior Debt Securities
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| ARTICLE 1 DEFINITIONS |
1 |
| |
|
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
|
|
| Section 2.01 |
Designation and Terms of Securities |
5 |
| |
|
|
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
7 |
| |
|
|
| Section 2.03 |
Denominations: Provisions for Payment |
7 |
| |
|
|
| Section 2.04 |
Execution and Authentication |
9 |
| |
|
|
| Section 2.05 |
Registration of Transfer and Exchange |
10 |
| |
|
|
| Section 2.06 |
Temporary Securities |
11 |
| |
|
|
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
11 |
| |
|
|
| Section 2.08 |
Cancellation |
12 |
| |
|
|
| Section 2.09 |
Benefits of Indenture |
12 |
| |
|
|
| Section 2.10 |
Authenticating Agent |
12 |
| |
|
|
| Section 2.11 |
Global Securities |
13 |
| |
|
|
| ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
14 |
| |
|
|
| Section 3.01 |
Redemption |
14 |
| |
|
|
| Section 3.02 |
Notice of Redemption |
14 |
| |
|
|
| Section 3.03 |
Payment Upon Redemption |
15 |
| |
|
|
| Section 3.04 |
Sinking Fund |
16 |
| |
|
|
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
16 |
| |
|
|
| Section 3.06 |
Redemption of Securities for Sinking Fund |
16 |
| |
|
|
| ARTICLE 4 COVENANTS |
17 |
| |
|
|
| Section 4.01 |
Payment of Principal, Premium and Interest |
17 |
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| Section 4.02 |
Maintenance of Office or Agency |
17 |
| |
|
|
| Section 4.03 |
Paying Agents |
17 |
| |
|
|
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
19 |
| |
|
|
| Section 4.05 |
Compliance with Consolidation Provisions |
19 |
| |
|
|
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
19 |
| |
|
|
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
19 |
| |
|
|
| Section 5.02 |
Preservation Of Information; Communications With Securityholders |
19 |
| |
|
|
| Section 5.03 |
Reports by the Company |
20 |
| |
|
|
| Section 5.04 |
Reports by the Trustee |
20 |
| |
|
|
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
20 |
| |
|
|
| Section 6.01 |
Events of Default |
20 |
| |
|
|
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
22 |
| |
|
|
| Section 6.03 |
Application of Moneys or Property Collected |
24 |
| |
|
|
| Section 6.04 |
Limitation on Suits |
24 |
| |
|
|
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
25 |
| |
|
|
| Section 6.06 |
Control by Securityholders |
25 |
| |
|
|
| Section 6.07 |
Undertaking to Pay Costs |
26 |
| |
|
|
| ARTICLE 7 CONCERNING THE TRUSTEE |
26 |
| |
|
|
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
26 |
| |
|
|
| Section 7.02 |
Certain Rights of Trustee |
27 |
| |
|
|
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
29 |
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| Section 7.04 |
May Hold Securities |
29 |
| |
|
|
| Section 7.05 |
Moneys Held in Trust |
29 |
| |
|
|
| Section 7.06 |
Compensation and Reimbursement |
29 |
| |
|
|
| Section 7.07 |
Reliance on Officers’ Certificate |
30 |
| |
|
|
| Section 7.08 |
Disqualification; Conflicting Interests |
30 |
| |
|
|
| Section 7.09 |
Corporate Trustee Required; Eligibility |
30 |
| |
|
|
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
31 |
| |
|
|
| Section 7.11 |
Acceptance of Appointment By Successor |
32 |
| |
|
|
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
33 |
| |
|
|
| Section 7.13 |
Preferential Collection of Claims Against the Company |
34 |
| |
|
|
| Section 7.14 |
Notice of Default |
34 |
| |
|
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
34 |
| |
|
|
| Section 8.01 |
Evidence of Action by Securityholders |
34 |
| |
|
|
| Section 8.02 |
Proof of Execution by Securityholders |
35 |
| |
|
|
| Section 8.03 |
Who May be Deemed Owners |
35 |
| |
|
|
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
35 |
| |
|
|
| Section 8.05 |
Actions Binding on Future Securityholders |
36 |
| |
|
|
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
36 |
| |
|
|
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
36 |
| |
|
|
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
38 |
| |
|
|
| Section 9.03 |
Effect of Supplemental Indentures |
38 |
| |
|
|
| Section 9.04 |
Securities Affected by Supplemental Indentures |
38 |
| |
|
|
| Section 9.05 |
Execution of Supplemental Indentures |
39 |
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| ARTICLE 10 SUCCESSOR ENTITY |
39 |
| |
|
|
| Section 10.01 |
Company May Consolidate, Etc. |
39 |
| |
|
|
| Section 10.02 |
Successor Entity Substituted |
40 |
| |
|
|
| Section 10.03 |
Evidence of Consolidation, Etc. to Trustee |
40 |
| |
|
|
| ARTICLE 11 SATISFACTION AND DISCHARGE |
40 |
| |
|
|
| Section 11.01 |
Satisfaction and Discharge of Indenture |
40 |
| |
|
|
| Section 11.02 |
Discharge of Obligations |
41 |
| |
|
|
| Section 11.03 |
Deposited Moneys to be Held in Trust |
41 |
| |
|
|
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
41 |
| |
|
|
| Section 11.05 |
Repayment to Company |
42 |
| |
|
|
| ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
42 |
| |
|
|
| Section 12.01 |
No Recourse |
42 |
| |
|
|
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
43 |
| |
|
|
| Section 13.01 |
Effect on Successors and Assigns |
43 |
| |
|
|
| Section 13.02 |
Actions by Successor |
43 |
| |
|
|
| Section 13.03 |
Surrender of Company Powers |
43 |
| |
|
|
| Section 13.04 |
Notices |
43 |
| |
|
|
| Section 13.05 |
Governing Law |
43 |
| |
|
|
| Section 13.06 |
Treatment of Securities as Debt |
44 |
| |
|
|
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
44 |
| |
|
|
| Section 13.08 |
Payments on Business Days |
44 |
| |
|
|
| Section 13.09 |
Conflict with Trust Indenture Act |
44 |
| |
|
|
| Section 13.10 |
Indenture and Securities Solely Corporate Obligations |
45 |
| |
|
|
| Section 13.11 |
Counterparts |
45 |
| |
|
|
| Section 13.12 |
Separability |
45 |
| |
|
|
| Section 13.13 |
Compliance Certificates |
45 |
| (1) | This
Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions. |
INDENTURE
INDENTURE, dated as of [●], 20[●], among Pop Culture
Group Co., Ltd, a Cayman Islands company (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter referred to as
the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
“Business Day” means, with respect to any
series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation
to close.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Pop Culture Group Co., Ltd,
a Cayman Islands company, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [ ].
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities
of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under the Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with respect to
Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Global Security” means, with respect to
any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the United States of America that, in either case, are not callable
or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Securities, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect to any such Governmental Obligation or a specific payment
of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.
“Interest Payment Date”, when used with respect
to any installment of interest on a Security of a particular series, means the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.
“Officer” means, with respect to the Company,
the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief operating officer, any
executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate” means a certificate
signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion in
writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07, if and to the
extent required by the provisions thereof.
“Outstanding”, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect
to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president, the secretary,
the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Securityholder”, “holder of Securities”,
“registered holder”, or other similar term, means the Person or Persons in whose name or names a particular Security shall
be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
(i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means , and, subject to the provisions
of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person acting in such capacity
hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to a particular series
of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Voting Stock”, as applied to stock of any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series
up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution or
pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established
in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the
series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their issuance,
the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such Interest
Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the
interest payment periods and the duration of such extension;
(7) the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(8) the obligation, if any, of the Company
to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the
series including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including
terms, to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms of this
Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable
as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for ordinary shares or other securities of the Company or any other Person and, if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or
exchange features, and the applicable conversion or exchange period;
(14) if other than the principal amount
thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;
(15) any additional or different Events
of Default or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability
of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of their capital stock; redeem capital stock; place restrictions on such Subsidiaries placing restrictions on
their ability to pay dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage in transactions with shareholders and affiliates; issue or sell shares
of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants,
financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based
or asset-based ratios) provided for with respect to the Securities of the series;
(16) if other than dollars, the coin
or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any,
upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of
the series to any Securityholder that is not a “United States person” for federal tax purposes; and
(18) any restrictions on transfer, sale
or assignment of the Securities of the series.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the secretary or an assistant
secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Company setting
forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different redemption
dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The Securities of
a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section
2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any
Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner:
the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in
the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any
Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture. At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities,
signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be
exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the
City and State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In
respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause
to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other
location designated by the Company, a register or registers (herein referred to as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this
Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to
Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of
new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving
any transfer.
(d) The Company shall not be required
(i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof
called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities,
and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. Said Authenticating
Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined
by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish
pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be
registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions
of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company
or to a nominee of such successor Depositary.
(c) If at any time the Depositary for
a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any
time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute
or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and the Company
has received a request from the Depositary, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company
will execute, and subject to Section 2.04, the Trustee will authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. In addition, the Company may at any time determine that the Securities of any series
shall no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire
to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the
Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of
such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole
or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan, the City and State of
New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Securities
of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory
to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed,
and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it
shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall cease to accrue on and after
the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable record
date pursuant to Section 2.03).
(b) Upon presentation of any Security
of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency
where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series
of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series and
(ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided herein and established
with respect to such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to each such series and
at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one
or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums held by
it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice
of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any)
or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during
the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its
own paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if
any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more paying agents
for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this
Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability
with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.
Section 5.02 Preservation Of Information; Communications With Securityholders.
(a) The Trustee shall preserve, in
as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in
the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by
the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate
as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture
or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission may from time to time
by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the SEC. The Company shall also comply with the requirements of Section 314
of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On or before July 1 in each year
in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register, a brief report dated as of the preceding May 1, if and to the extent required
under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall,
at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which
any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the Trustee
when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect
to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and
is continuing:
(1) the Company defaults in the payment
of any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment
of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with
respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect
to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within
the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction
enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.
(b) In each and every such case (other
than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If an Event of
Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on all the Securities of
that series shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At any time after the principal
of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable to the
Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment
of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due
by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have
proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then
and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (i)
in case it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or (ii) in case it shall default in the payment of the principal of (or
premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become due and payable on
all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor
upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders
of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to this Article
with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest, upon presentation of
the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously
shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of
such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount
of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt
of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such
90 day period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption,
on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a) Except as otherwise provided in
Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture
or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee
with respect to such series; provided, however, that such direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than
10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities
of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event
of Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that
series that may have occurred:
(A) the duties and obligations of the
Trustee shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee;
and
(B) in the absence of bad faith on
the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirement of this Indenture;
(ii) the Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this
Indenture with respect to the Securities of that series; and
(iv) None of the provisions contained
in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely conclusively
and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or
demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been
cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture,
and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2)
any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this Indenture
or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The recitals contained herein and
in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees
to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons
not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith and except
as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company
under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements
and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.
Section 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America
or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial, or District
of Columbia authority.
If such corporation or other Person publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of
the following shall occur:
(i) the Trustee shall fail to comply
with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or
(iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such series
by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company.
(d) Any resignation or removal of the
Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed
pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time
there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor
trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept
its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment
by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails
to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default occurs and is continuing and
if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default within 45
days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, as evidenced by
an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to
be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action,
and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution
by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall
be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that series
that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except
as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to cure any ambiguity, defect,
or inconsistency herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities and to make all appropriate changes for such purpose;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the benefit of such series), to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise
the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not
adversely affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of
and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of
any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights
of the holders of any series of Securities;
(h) to evidence and provide for the
acceptance of appointment hereunder by a successor trustee; or
(i) to comply with any requirements
of the Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture
Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01, may bear
a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such series
may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of that
series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that
series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’ Certificate and an Opinion
of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided,
however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, nothing contained
in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed
by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of the Securities
of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article
shall require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the
survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other
Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and Securities
for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company
and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall have been paid by
the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations sufficient to pay
at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the
Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03,
2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the particular series of Securities for the payment or redemption
of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys
or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31
of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only to the Company
for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS
AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors as such, of the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every
such incorporator, shareholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 3rd Floor,
No. 168 Fengqi Road, Jimei District, Xiamen City, Fujian Province, China with a copy to Hunter Taubman Fischer & Li LLC, 48 Wall Street,
Suite 1100, New York, NY 10005, Attn: Ying Li, Esq. Any notice, election, request or demand by the Company or any Securityholder or by
any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand
by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be
delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include
(i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business
Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor entity, either directly or through the Company or any successor entity,
whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether or not the
signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and its status.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
| |
POP CULTURE GROUP CO., LTD |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
[TRUSTEE], as Trustee |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
CROSS-REFERENCE TABLE (1)
| Section of Trust Indenture Act of 1939, as Amended |
|
Section of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| |
|
|
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| |
|
|
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) | This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions. |
47
Exhibit 4.6
POP CULTURE GROUP CO., LTD
(the “Issuer”)
AND
[TRUSTEE]
(the “Trustee”)
INDENTURE
Dated as of [●], 20[●]
Subordinated Debt Securities
TABLE OF CONTENTS
| ARTICLE 1 DEFINITIONS |
1 |
| |
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| Section 2.01 |
Designation and Terms of Securities |
4 |
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
6 |
| Section 2.03 |
Denominations: Provisions for Payment |
6 |
| Section 2.04 |
Execution and Authentication |
8 |
| Section 2.05 |
Registration of Transfer and Exchange |
8 |
| Section 2.06 |
Temporary Securities. |
9 |
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
10 |
| Section 2.08 |
Cancellation |
10 |
| Section 2.09 |
Benefits of Indenture |
10 |
| Section 2.10 |
Authenticating Agent |
11 |
| Section 2.11 |
Global Securities |
11 |
| |
|
|
| ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
12 |
| Section 3.01 |
Redemption |
12 |
| Section 3.02 |
Notice of Redemption |
12 |
| Section 3.03 |
Payment Upon Redemption |
13 |
| Section 3.04 |
Sinking Fund |
14 |
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
14 |
| Section 3.06 |
Redemption of Securities for Sinking Fund |
14 |
| |
|
|
| ARTICLE 4 COVENANTS |
14 |
| Section 4.01 |
Payment of Principal, Premium and Interest |
14 |
| Section 4.02 |
Maintenance of Office or Agency |
15 |
| Section 4.03 |
Paying Agents |
15 |
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
16 |
| Section 4.05 |
Compliance with Consolidation Provisions |
16 |
| |
|
|
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
16 |
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
16 |
| Section 5.02 |
Preservation Of Information; Communications With Securityholders |
16 |
| Section 5.03 |
Reports by the Company |
17 |
| Section 5.04 |
Reports by the Trustee |
17 |
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
17 |
| Section 6.01 |
Events of Default |
17 |
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
19 |
| Section 6.03 |
Application of Moneys or Property Collected |
20 |
| Section 6.04 |
Limitation on Suits |
20 |
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
21 |
| Section 6.06 |
Control by Securityholders |
21 |
| Section 6.07 |
Undertaking to Pay Costs |
21 |
| |
|
|
| ARTICLE 7 CONCERNING THE TRUSTEE |
22 |
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
22 |
| Section 7.02 |
Certain Rights of Trustee |
23 |
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
24 |
| Section 7.04 |
May Hold Securities |
24 |
| Section 7.05 |
Moneys Held in Trust |
24 |
| Section 7.06 |
Compensation and Reimbursement |
24 |
| Section 7.07 |
Reliance on Officers’ Certificate |
25 |
| Section 7.08 |
Disqualification; Conflicting Interests |
25 |
| Section 7.09 |
Corporate Trustee Required; Eligibility |
25 |
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
25 |
| Section 7.11 |
Acceptance of Appointment By Successor |
26 |
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
27 |
| Section 7.13 |
Preferential Collection of Claims Against the Company |
27 |
| Section 7.14 |
Notice of Default |
27 |
| |
|
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
28 |
| Section 8.01 |
Evidence of Action by Securityholders |
28 |
| Section 8.02 |
Proof of Execution by Securityholders |
28 |
| Section 8.03 |
Who May be Deemed Owners |
28 |
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
29 |
| Section 8.05 |
Actions Binding on Future Securityholders |
29 |
| |
|
|
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
29 |
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
29 |
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
30 |
| Section 9.03 |
Effect of Supplemental Indentures |
31 |
| Section 9.04 |
Securities Affected by Supplemental Indentures |
31 |
| Section 9.05 |
Execution of Supplemental Indentures |
31 |
| |
|
|
| ARTICLE 10 SUCCESSOR ENTITY |
32 |
| Section 10.01 |
Company May Consolidate, Etc |
32 |
| Section 10.02 |
Successor Entity Substituted |
32 |
| Section 10.03 |
Evidence of Consolidation, Etc. to Trustee |
32 |
| |
|
|
| ARTICLE 11 SATISFACTION AND DISCHARGE |
33 |
| Section 11.01 |
Satisfaction and Discharge of Indenture |
33 |
| Section 11.02 |
Discharge of Obligations |
33 |
| Section 11.03 |
Deposited Moneys to be Held in Trust |
33 |
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
33 |
| Section 11.05 |
Repayment to Company |
34 |
| ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
34 |
| Section 12.01 |
No Recourse |
34 |
| |
|
|
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
35 |
| Section 13.01 |
Effect on Successors and Assigns |
35 |
| Section 13.02 |
Actions by Successor |
35 |
| Section 13.03 |
Surrender of Company Powers |
35 |
| Section 13.04 |
Notices |
35 |
| Section 13.05 |
Governing Law |
35 |
| Section 13.06 |
Treatment of Securities as Debt |
35 |
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
35 |
| Section 13.08 |
Payments on Business Days |
36 |
| Section 13.09 |
Conflict with Trust Indenture Act |
36 |
| Section 13.10 |
Indenture and Securities Solely Corporate Obligations |
36 |
| Section 13.11 |
Counterparts |
36 |
| Section 13.12 |
Separability |
37 |
| Section 13.13 |
Compliance Certificates |
37 |
| |
|
|
| ARTICLE 14 SUBORDINATION OF SECURITIES |
37 |
| Section 14.01 |
Subordination Terms |
37 |
| (1) | This
Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions. |
INDENTURE
INDENTURE, dated as of [●], 20[●],
among Pop Culture Group Co., Ltd, a Cayman Islands company (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
“Business Day” means, with respect to any
series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation
to close.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Pop Culture Group Co., Ltd,
a Cayman Islands company, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [ ].
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities
of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under the Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with respect to
Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Global Security” means, with respect to
any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the United States of America that, in either case, are not callable
or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Securities, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect to any such Governmental Obligation or a specific payment
of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.
“Interest Payment Date”, when used with respect
to any installment of interest on a Security of a particular series, means the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.
“Officer” means, with respect to the Company,
the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief operating officer, any
executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate” means a certificate
signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion in
writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07, if and to the
extent required by the provisions thereof.
“Outstanding”, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect
to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president, the secretary,
the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Securityholder”, “holder of Securities”,
“registered holder”, or other similar term, means the Person or Persons in whose name or names a particular Security shall
be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
(i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means, and, subject to the provisions
of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person acting in such capacity
hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to a particular series
of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Voting Stock”, as applied to stock of any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution or pursuant
to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in
or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their issuance,
the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment
Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such Interest
Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments
made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms of this
Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable as
a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for ordinary shares or other securities of the Company or any other Person and, if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or
exchange features, and the applicable conversion or exchange period;
(14) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01;
(15) any additional or different Events of Default
or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability of the
Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make distributions
in respect of their capital stock; redeem capital stock; place restrictions on such Subsidiaries placing restrictions on their ability
to pay dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with shareholders and affiliates; issue or sell shares of their Subsidiaries;
or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants, financial covenants that
require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios)
provided for with respect to the Securities of the series;
(16) if other than dollars, the coin or currency
in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of the
series to any Securityholder that is not a “United States person” for federal tax purposes;
(18) any restrictions on transfer, sale or assignment
of the Securities of the series; and
(19) the subordination terms of the Securities
of the series.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the secretary or an assistant
secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Company setting
forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different redemption
dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The Securities of
a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section
2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date
of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture. At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities,
signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and
State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location
designated by the Company, a register or registers (herein referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article
provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities
and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new Securities
in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i)
to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof
called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities,
and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities (and, with respect to
the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any series are subordinated)
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. Said Authenticating
Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined
by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of
the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05, only to
another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series
of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the
Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation,
and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and the Company has received a request
from the Depositary, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and
subject to Section 2.04, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the Company may at any time determine that the Securities of any series shall
no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the Company reserved
for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole
or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan, the City and State of
New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Securities of a series
are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory to
the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed,
and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it
shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall cease to accrue on and after
the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable record
date pursuant to Section 2.03).
(b) Upon presentation of any Security of such
series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where
the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series and
(ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided herein and established
with respect to such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to each such series and
at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums held by it as
such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such sums have
been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of
any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any)
or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any) or interest
on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any failure (by it or
any other obligor on such Securities) to take such action. Whenever the Company shall have one or more paying agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit
with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05, and
(ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability
with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar .
Section 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the most
recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee
in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b) of the Trust
Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission may from time to time
by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the SEC. The Company shall also comply with the requirements of Section 314
of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On or before July 1 in each year in which
any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as of the preceding May 1, if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the
time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which any Securities
are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the Trustee when any Securities
become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to Securities
of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such default
continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect
to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect
to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the
Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall have
already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If an Event of
Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on all the Securities of
that series shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable to the
Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment
of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due
by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then
and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required by any
sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default
shall have continued for a period of 90 Business Days, or (ii) in case it shall default in the payment of the principal of (or premium,
if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become due and payable on
all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon
the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity out of
the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders
of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to this Article
with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest, upon presentation of
the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all indebtedness of the Company to which
such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto, as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously
shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of
such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount
of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt
of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such
90 day period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption,
on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or
of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject
to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict with any rule of law or with
this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of the covenants contained herein or established pursuant
to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of, or premium, if
any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than
10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities
of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that
may have occurred:
(A) the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirement of this
Indenture;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority
in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(iv) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely conclusively and
shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company
by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been
cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture,
and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders of not less
than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2)
any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this Indenture
or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for
the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of
any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay
to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons
not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith and except
as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness shall be secured by
a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America
or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial, or District
of Columbia authority.
If such corporation or other Person publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series,
or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months may on behalf
of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following
shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or
(iii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such series
by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall
be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of
a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of
a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor
trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii)
shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each
such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default occurs and is continuing and
if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default within 45
days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of
the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, as evidenced by
an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to
be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action,
and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that series
that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except
as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities and to make all appropriate changes for such purpose;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the benefit of such series), to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of
any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of the
Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01, may bear
a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such series
may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of that
series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that
series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’ Certificate and an Opinion
of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided,
however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, nothing contained
in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed
by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of the Securities
of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the survivor
of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other Person
(whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and Securities
for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company
and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall have been paid by
the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations sufficient to pay
at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the
Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03,
2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the particular series of Securities for the payment or redemption
of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys
or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31
of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only to the Company
for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors as such, of the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every
such incorporator, shareholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 3rd Floor,
No. 168 Fengqi Road, Jimei District, Xiamen City, Fujian Province, the People’s Republic of China, with a copy to Hunter Taubman
Fischer & Li LLC, 48 Wall Street, Suite 1100, New York, NY 10005, Attn: Ying Li, Esq. Any notice, election, request or demand by the
Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be delivered pursuant
to Section 13.13) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include
(i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business
Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor entity, either directly or through the Company or any successor entity,
whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether or not the
signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal of, premium, if any, and
interest on any series of securities issued hereunder shall be subordinated to the extent set forth in an indenture supplemental hereto
relating to such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
| |
POP CULTURE GROUP CO., LTD |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
[TRUSTEE], as Trustee |
| |
|
|
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By: |
|
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Name: |
|
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Title: |
|
CROSS-REFERENCE TABLE (1)
| Section of Trust Indenture Act Of 1939, as Amended |
|
Section of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
39
Exhibit 5.1
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Pop Culture Group Co., Ltd
Harney Fiduciary (Cayman) Limited
4th Floor, Harbour Place
103 South Church Street
P.O. Box 10240
Grand Cayman KY1-1002
Cayman Islands |
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D +1 345 815 1877 |
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E bradley.kruger@ogier.com |
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Reference: 427082.00001/BKR/TTU |
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14 July 2022 |
Pop Culture Group Co., Ltd (the Company) – Exhibit 5.1
We have acted as Cayman Islands legal counsel
to the Company in connection with the Company's registration statement on Form F-3, including all amendments or supplements thereto (the
Registration Statement), filed by the Company with the United States Securities and Exchange Commission (the Commission)
under the United States Securities Act of 1933, as amended (the Act) to date relating to the registration of up to US$200,000,000
of its securities to be issued by the Company from time to time listed below (together, the Securities):
| (a) | Class A ordinary shares of the Company of par value US$0.001 each (the Ordinary Shares); |
| (b) | Debt securities (the Debt Securities) to be issued pursuant to the applicable indenture, purchase
agreement or similar agreement to be entered into by the Company (the Debt Document); |
| (c) | warrants to purchase Ordinary Shares or any combination thereof (the Warrants) issuable pursuant
to the terms of a warrant agreement to be entered into between the Company and a warrant agent for such Warrants thereunder, if any (the
Warrant Document); |
| (d) | rights to purchase Ordinary Shares (the Rights) to be issued under a rights agreement, purchase
agreement or similar agreement to be entered into between the Company and one or more rights agent, if any (the Rights Document);
and/or |
| (e) | units comprising some or all of the Securities, in any combination, including Ordinary Shares, Debt Securities,
Warrants and Rights, or any combination of the foregoing Securities (the Units) to be issued under a unit agreement, purchase agreement
or similar agreement between the Company and a unit agent to be specified therein, if any (the Unit Document). |
|
Ogier
89 Nexus Way
Camana Bay
Grand Cayman, KY1-9009
Cayman Islands
T +1 345 949 9876
F +1 345 949 9877
ogier.com |
|
A list of Partners may be inspected on our website |
Pop Culture Group Co., Ltd
14 July 2022
The Debt Document, Warrant Document, Rights Document
and Unit Document are referred to herein collectively as Governing Documents.
The Debt Securities, the Warrants, the Rights
and the Units are collectively referred to herein as Non-Equity Securities.
No opinion is expressed herein as to any matter
pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to the issue of the Securities.
Unless a contrary intention appears, all capitalised
terms used in this opinion have the respective meanings set forth in the Documents. A reference to a Schedule is a reference to a schedule
to this opinion and the headings herein are for convenience only and do not affect the construction of this opinion.
For the purposes of giving this opinion,
we have examined originals, copies or drafts of the following documents (the Documents):
| (a) | the Certificate of Incorporation of the Company dated 3 January 2020 issued by the Registrar of Companies
of the Cayman Islands (the Registrar); |
| (b) | the amended and restated memorandum and articles of association of the Company adopted by special resolution
passed on 28 April 2020 (the Memorandum and the Articles); |
| (c) | a certificate of good standing dated 28 June 2022 (the Good Standing Certificate) issued by the
Registrar in respect of the Company; |
| (d) | a certificate dated 14 July 2022 as to certain matters of fact signed by a director of the Company
in the form annexed hereto (the Director's Certificate), having attached to it the written resolutions of the directors of
the Company passed on 13 July 2022 (the Board Resolutions); and |
| (e) | the Registration Statement. |
In giving this opinion we have relied
upon the assumptions set forth in Schedule 1 without having carried out any independent investigation or verification in respect of those
assumptions.
On the basis of the examinations and
assumptions referred to above and subject to the limitations and qualifications set forth below, we are of the opinion that:
Corporate status
| (a) | The Company has been duly incorporated as an exempted company and is validly existing and in good standing
with the Registrar. |
Pop Culture Group Co., Ltd
14 July 2022
Issuance of Shares
| (b) | With respect to the Ordinary Shares, when: |
| (i) | the board of directors of the Company (the Board) has taken all necessary corporate actions to
approve the issuance and allotment of the Ordinary Shares, the terms of the offering of the Ordinary Shares and any other related matters; |
| (ii) | either (A) the provisions of the applicable definitive purchase, underwriting or similar agreement approved
by the Board have been satisfied and payment of the consideration specified therein (being not less than the par value of the Ordinary
Shares) has been made, or (B) if such Ordinary Shares are issuable upon conversion, exchange, redemption, repurchase or exercise of any
other security, the terms of such security, the Memorandum and Articles or the instrument governing such security providing for such conversion,
exchange, redemption, repurchase or exercise for Ordinary Shares, as approved by the Board, have been satisfied and the consideration
approved by the Board (being not less than the par value of the Ordinary Shares) received; and |
| (iii) | valid entry has been made in the register of members of the Company reflecting such issuance of Ordinary
Shares, in each case in accordance with the Memorandum and Articles, |
the Ordinary Shares will be recognised
as having been duly authorised and validly issued, fully paid and non-assessable.
Issuance of Debt Securities
| (c) | With respect to the Debt Securities to be issued, when: |
| (i) | the Board has taken all necessary corporate actions to authorise and approve the creation and terms of
the Debt Securities and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (ii) | a Debt Document relating to the Debt Securities shall have been duly authorized and validly executed and
unconditionally delivered by and on behalf of the Company and all the relevant parties thereunder; and |
| (iii) | the Debt Securities issued thereunder have been duly executed and delivered on behalf of the Company in
the manner set forth in the applicable Debt Document relating to such issue of Debt Securities and delivered against due payment therefor
pursuant to, and in accordance with, the terms of the Registration Statement and any relevant prospectus supplement, |
the Debt Securities will be duly issued
and delivered.
Pop Culture Group Co., Ltd
14 July 2022
Valid Issuance of Warrants
| (d) | With respect to the Warrants to be issued, when: |
| (i) | the Board has taken all necessary corporate actions to authorise and approve the creation and terms of
the Warrants and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (ii) | a Warrant Document relating to the Warrants shall have been duly authorized and validly executed and unconditionally
delivered by the Company and the warrant agent thereunder; and |
| (iii) | the certificates representing the Warrants have been duly executed, countersigned, registered and delivered
in accordance with the Warrant Document relating to the Warrants and the applicable definitive purchase, underwriting or similar agreement
approved by the Board upon payment of the consideration therefor provided therein, |
the Warrants will be duly authorized
and validly issued and will constitute legal, valid and binding obligations of the Company.
Valid Issuance of Rights
| (e) | With respect to the Rights to be issued, when: |
| (i) | the Board has taken all necessary corporate actions to authorise and approve the creation and terms of
the Rights and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (ii) | a Rights Document relating to the Rights shall have been duly authorised and validly executed and unconditionally
delivered by the Company and the financial institution designated as rights agent thereunder; and |
| (iii) | the certificates representing the Rights shall have been duly executed, countersigned, issued, registered
and delivered in accordance with the Rights Document, and the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor provided therein, |
the Rights will be
duly authorised and validly issued and will constitute legal, valid and binding obligations of the Company.
Valid Issuance of Units
| (f) | With respect to each issue of Units, when: |
| (i) | the Board has taken all necessary corporate actions to authorise and approve the creation and terms of
the Units and to approve the issue of the Securities which are components thereof, the terms of the offering thereof and related matters; |
| (ii) | a Unit Document relating to the Units shall have been duly authorised and validly executed and unconditionally
delivered by the Company and the financial institution designated as unit agent thereunder; |
Pop Culture Group Co., Ltd
14 July 2022
| (iii) | in respect of any Debt Securities which are components of the Units, the Debt Securities shall have been
duly authorized and validly executed and unconditionally delivered by the Company and all relevant parties thereunder; |
| (iv) | in respect of any Warrants which are components of the Units, a Warrant Document shall have been duly
authorized and validly executed and unconditionally delivered by the Company and the warrant agent thereunder, if any, in respect of any
Warrants which are components of the Units; and |
| (v) | the Units and any Securities which are components of the Units shall have been duly executed, countersigned,
authenticated, issued, registered and delivered (in each case, as and when applicable), in accordance with the provisions of (A) the applicable
Unit Document relating to the Units, (B) the applicable Debt Document relating to any Debt Securities which are components of the Units,
(C) the applicable Warrant Document relating to any Warrants which are components of the Units, and (D) the applicable definitive purchase,
underwriting or similar agreement approved by the Board, and upon payment of the consideration therefor provided therein, |
the Units will be duly authorised and
validly issued and will constitute legal, valid and binding obligations of the Company.
| 4 | Limitations and Qualifications |
| (a) | as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this opinion,
made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect of references
in the Registration Statement and the Governing Documents to statutes, rules, regulations, codes or judicial authority of any jurisdiction
other than the Cayman Islands; |
| (b) | except to the extent that this opinion expressly provides otherwise, as to the commercial terms of, or
the validity, enforceability or effect of the Registration Statement or any of the Governing Documents, the accuracy of representations,
the fulfilment of warranties or conditions, the occurrence of events of default or terminating events or the existence of any conflicts
or inconsistencies among the Registration Statement, the Governing Documents and any other agreements into which the Company may have
entered or any other documents; or |
| (c) | as to whether the acceptance, execution or performance of the Company's obligations under the Governing
Documents will result in the breach of or infringe any other agreement, deed or document (other than the Memorandum and Articles) entered
into by or binding on the Company. |
| 4.2 | Under the Companies Act (Revised) (the Companies Act) of the Cayman Islands, annual returns in
respect of the Company must be filed with the Registrar of Companies in the Cayman Islands, together with payment of annual filing fees.
A failure to file annual returns and pay annual filing fees may result in the Company being struck off the Register of Companies, following
which its assets will vest in the Financial Secretary of the Cayman Islands and will be subject to disposition or retention for the benefit
of the public of the Cayman Islands. |
Pop Culture Group Co., Ltd
14 July 2022
| 4.3 | In good standing means only that as of the date of this opinion the Company is up-to-date with
the filing of its annual returns and payment of annual fees with the Registrar of Companies. We have made no enquiries into the Company's
good standing with respect to any filings or payment of fees, or both, that it may be required to make under the laws of the Cayman Islands
other than the Companies Act. |
| 4.4 | In this opinion the phrase “non-assessable” means, with respect to the Ordinary Shares, that
a member of the Company shall not, by virtue of its status as a member of the Company, be liable for additional assessments or calls on
the Ordinary Shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of
an agency relationship or an illegal or improper use or other circumstance in which a court may be prepared to pierce or lift the corporate
veil). |
| 4.5 | We have not reviewed the Governing Documents and our opinions are qualified accordingly. |
| 4.6 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event
of any relevant illegality or invalidity, sever the relevant provisions of the Governing Documents and the Non-Equity Securities and enforce
the remainder of the Governing Documents and the Non-Equity Securities or the transaction of which such provisions form a part, notwithstanding
any express provisions in the Indenture in this regard. |
| 5 | Governing law of this opinion |
| (a) | governed by, and shall be construed in accordance with, the laws of the Cayman Islands; |
| (b) | limited to the matters expressly stated in it; and |
| (c) | confined to, and given on the basis of, the laws and practice in the Cayman Islands at the date of this
opinion. |
| 5.2 | Unless otherwise indicated, a reference to any specific Cayman Islands legislation is a reference to that
legislation as amended to, and as in force at, the date of this opinion. |
We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the reference to our firm under the headings "Enforceability of Civil
Liabilities" and "Legal Matters" of the Registration Statement. In giving such consent, we do not hereby admit that we
are experts within the meaning of Section 11 of the Act or that we are in the category of persons whose consent is required under Section
7 of the Act or the Rules and Regulations of the Commission promulgated thereunder.
This opinion may be used only in connection with
the offer and sale of the Securities while the Registration Statement is effective.
Yours faithfully
/s/ Ogier
Ogier
Pop Culture Group Co., Ltd
14 July 2022
Schedule
1
Assumptions
| 1 | All original documents examined by us are authentic and complete. |
| 2 | All copy documents examined by us (whether in facsimile, electronic or other form) conform to the originals
and those originals are authentic and complete. |
| 3 | All signatures, seals, dates, stamps and markings (whether on original or copy documents) are genuine. |
| 4 | Each of the Good Standing Certificate and the Director's Certificate is accurate and complete as at the
date of this opinion. |
| 5 | Each of the parties to the Governing Documents other than the Company is duly incorporated, formed or
organised (as applicable), validly existing and in good standing under all relevant laws. Any individuals who are parties to the Governing
Documents, or who sign or have signed documents or give information on which we rely, have the legal capacity under all relevant laws
(including the laws of the Cayman Islands) to enter into and perform their obligations under such Governing Document, sign such documents
and give such information. |
| 6 | Each Governing Document and the Non-Equity Securities have been, or will be, authorised and duly executed
and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws and, in respect of the Company,
in the manner authorised by the Board. |
| 7 | The applicable Governing Documents will be governed by and construed in accordance with the laws of New
York and will be legal, valid, binding and enforceable against all relevant parties in accordance with its terms under the laws of New
York and all other relevant laws. If an obligation is to be performed in a jurisdiction outside the Cayman Islands, its performance will
not be contrary to an official directive, impossible or illegal under the laws of that jurisdiction. |
| 8 | The choice of the laws of the State of New York as the governing law of the Governing Documents has, or
will have, been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of the State
of New York and any other relevant jurisdiction (other than the Cayman Islands) as a matter of the laws of the State of New York and all
other relevant laws (other than the laws of the Cayman Islands). |
| 9 | No monies paid to or for the account of any party in respect of the Securities under the Governing Documents
represent, or will represent, criminal property or terrorist property (as defined in the Proceeds of Crime Act (Revised), and the Terrorism
Act (Revised) respectively) and none of the parties to the Governing Documents is acting or will act in relation to the transactions contemplated
by the Governing Documents, in a manner inconsistent with sanctions imposed by Cayman Islands authorities, or United Nations or United
Kingdom sanctions or measures extended by statutory instrument to the Cayman Islands by orders of Her Majesty in Council. |
Pop Culture Group Co., Ltd
14 July 2022
| 10 | The Non-Equity Securities will respectively be issued and authenticated as required in accordance with
the provisions of a duly authorised, executed and delivered applicable Governing Document and the Non-Equity Securities will be legal,
valid, binding and enforceable against all relevant parties in accordance with their terms under the laws of the State of New York and
all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
| 11 | The form and terms of any and all Securities, the issuance and sale thereof by the Company, and the Company's
incurrence and performance of its obligations thereunder or in respect thereof (including, without limitation, its obligations under any
related agreement, indenture or supplement thereto) in accordance with the terms thereof will not violate the memorandum and articles
of association of the Company then in effect nor any applicable law, regulation, order or decree in the Cayman Islands. |
| 12 | None of the opinions expressed herein will be adversely affected by the laws or public policies of any
jurisdiction other than the Cayman Islands. In particular, but without limitation to the previous sentence: |
| (a) | the laws or public policies of any jurisdiction other than the Cayman Islands will not adversely affect
the capacity or authority of the Company; and |
| (b) | neither the execution or delivery of the Governing Documents nor the exercise by any party to the Governing
Documents of its rights or the performance of its obligations under them contravene those laws or public policies. |
| 13 | There are no agreements, documents or arrangements (other than the documents expressly referred to in
this opinion as having been examined by us) that materially affect or modify the Governing Documents or the transactions contemplated
by Governing Documents or restrict the powers and authority of the Company in any way from entering into and performing its obligations
under a duly authorised, executed and delivered Governing Documents. |
| 14 | The Company has obtained, or will obtain prior to execution, all consents, licences, approvals and authorisations
of any governmental or regulatory authority or agency or of any other person that it is required to obtain pursuant to the laws of all
relevant jurisdictions (other than those of the Cayman Islands) to ensure the legality, validity, enforceability, proper performance and
admissibility in evidence of the Governing Documents. Any conditions to which such consents, licences, approvals and authorisations are
subject have been, and will continue to be, satisfied or waived by the parties entitled to the benefit of them. |
| 15 | All necessary corporate action will be taken to authorise and approve any issuance of Securities and the
terms of the offering of such Securities thereof and other related matters and that the applicable definitive purchase, underwriting or
similar agreement will be duly approved, executed and delivered by or on behalf of the Company and all other parties thereto. |
8
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference
in this Registration Statement on Form F-3 of our report dated November 10, 2021, relating to the consolidated financial statements of
Pop Culture Group Co., Ltd, appearing in the Annual Report on Form 20-F for the fiscal year ended June 30, 2021. We also consent to the
reference to our firm under the heading “Experts” in such Registration Statement.
/s/ Friedman LLP
New York, New York
July 14, 2022
Exhibit 23.3
July 14, 2022
Pop Culture Group Co., Ltd
3rd Floor, No. 168 Fengqi Road
Jimei District, Xiamen City, Fujian Province
The People’s Republic of China
| RE: | Consent Letter on Pop Culture Group Co., Ltd – Form
F-3 |
Dear Sirs/Madams,
We are qualified lawyers of the People’s
Republic of China (the “PRC”, for the purpose of this consent only, the PRC shall not include the Hong Kong Special
Administrative Region, the Macau Special Administrative Region and Taiwan).
We act as the PRC counsel to Pop Culture Group
Co., Ltd (the “Company”), a company incorporated under the laws of the Cayman Islands, in connection with the filing
on Form F-3 to register up to $200,000,000 of securities of the Company in a shelf registration statement.
We hereby consent to the reference to our name
in such registration statement.
This Consent is rendered solely to you for the
filing on Form F-3 and may not be used for any other purpose. In giving such consent, we do not thereby admit that we fall within the
category of the person whose consent is required under Section 7 of the U.S. Securities Act of 1933, or under the Securities Exchange
Act of 1934, in each case, as amended, or the regulations promulgated thereunder.
Yours faithfully,
/s/ Jincheng Tongda & Neal Law Firm
Jincheng Tongda & Neal Law Firm
Exhibit 107
Calculation of Filing Fee Tables
FORM
F-3
(Form Type)
Pop
Culture Group Co., Ltd
(Exact Name of Registrant as Specified in its Charter)
Not Applicable
(Translation of Registrant’s
Name into English)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered (1) |
|
Proposed
Maximum
Offering
Price
Per Unit (2) |
|
Maximum
Aggregate
Offering
Price (3) |
|
Fee Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form Type |
|
Carry
Forward
File Number |
|
Carry
Forward
Initial
effective
date |
|
Filing Fee
Previously Paid
In Connection
with Unsold
Securities
to be Carried
Forward |
| Newly Registered Securities |
| Fees to Be Paid |
Equity |
|
Class A Ordinary Shares, par value $0.001 per share |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
| |
Debt |
|
Debt Securities |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
| |
Other |
|
Warrants |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
| |
Other |
|
Rights |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
| |
Other |
|
Units |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
| |
Unallocated (Universal) Shelf |
|
- |
|
457(o) |
|
(1) |
|
(2) |
|
$200,000,000 |
|
$0.0000927 |
|
$18,540 |
|
|
|
|
|
|
|
|
| Fees Previously Paid |
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
- |
|
- |
|
- |
|
- |
|
|
|
- |
|
|
|
|
|
- |
|
- |
|
- |
|
- |
| |
Total Offering Amounts |
|
|
|
|
|
$200,000,000 |
|
|
|
$18,540 |
|
|
|
|
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
| |
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
| |
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
$18,540 |
|
|
|
|
|
|
|
|
| (1) | The registrant is registering an indeterminate number of securities for offer and sale from time to time
at indeterminate prices, which shall have an aggregate offering price not to exceed $200,000,000. In addition, pursuant to Rule 416(a)
under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional number of securities
that may be issued from time to time to prevent dilution as a result of a distribution, split, combination, or similar transaction. Securities
registered hereunder may be sold separately, or together with other securities registered hereunder. Includes consideration to be received
by the registrant, if applicable, for registered securities that are issuable upon exercise, conversion, or exchange of other registered
securities |
| (2) | The proposed maximum aggregate offering price per class of security will be determined from time to time
by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to
each class of security pursuant to Instructions to the Calculation of Filing Fee Tables and Related Disclosure (2)(A)(iii)(b) of Form
F-3 under the Securities Act. |
| (3) | Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o)
under the Securities Act. |