As
filed with the Securities and Exchange Commission on January 16, 2026
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MIXED
MARTIAL ARTS GROUP LIMITED
(Exact
name of registrant as specified in its charter)
Not
Applicable
(Translation
of registrant’s name into English)
| Australia |
|
7380 |
|
Not
Applicable |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification Code Number) |
|
(I.R.S.
Employer
Identification
No.) |
Level
1, Suite 1, 29-33 The Corso
Manly,
New South Wales 2095
+61 1800
151 865
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Wimp
2 Warrior LLC
8
The Green, Ste R
Dover,
DE 19901
(302)
288-0670
(Names,
address, including zip code, and telephone number, including area code, of agent for service)
(Name,
address, and telephone number of agent for service)
Copies
to:
Jeffrey
Fessler, Esq.
Seth
Lemings, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112-0015
Telephone:
(212) 653-8700
Facsimile:
(212) 653-8701
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective
on 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 which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
We
are filing this registration statement with the Securities and Exchange Commission (the “SEC”) using a “shelf”
registration process. Under this registered “shelf,” in the future, we may, from time to time, sell any combination of the
securities described herein, in one or more offerings, up to a maximum aggregate offering price of $50,000,000.
On
December 31, 2025, we issued an aggregate of 4,285,713 Series A Preferred Shares (the “Series A Preferred Shares”) to certain
accredited investors in a private placement offering, which Series A Preferred Shares are convertible into an aggregate of 4,285,713
of our ordinary shares. As part of the private placement offering, we issued a five-year warrant (the “Warrants”) to Dominari
Securities LLC (“Dominari” and collectively with the private placement investors, the “Selling Stockholders”)
which warrant is exercisable for an aggregate of 342,857 of our ordinary shares. The placement agent warrant contains customary piggyback
registration rights for a period of two years.
Accordingly,
this registration statement contains two prospectuses:
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a
base prospectus, which covers the potential future offering, issuance and sale of such indeterminate number of ordinary shares, preferred
shares, debt securities, warrants to purchase ordinary shares, preferred shares, or debt securities of the registrant, subscription
rights to purchase ordinary shares, preferred shares, debt securities, warrants or units consisting of some or all of these securities,
and units consisting of some or all of these securities, which together shall have an aggregate initial offering price not to exceed
$50,000,000; and |
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a
resale prospectus covering the resale by the Selling Stockholders of up to 4,628,570 ordinary shares upon conversion of the Series
A Preferred Shares and the Warrants. |
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
will be specified in a prospectus supplement to the base prospectus. The resale prospectus immediately follows the sales agreement prospectus
supplement.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JANUARY 16, 2026
PROSPECTUS
$50,000,000
Ordinary
Shares
Preferred
Shares
Debt
Securities
Warrants
Rights
Units
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $50,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may also offer
ordinary shares upon conversion of or exchange for the debt securities or upon the exercise of the warrants or rights.
This
prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will
provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also
describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained
in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into
this prospectus or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus
and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to
which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts
and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds
that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our
ordinary shares are listed on the NYSE American under the symbol “MMA.” On January 14, 2026, the last reported sale price
of our ordinary shares was $1.05 per share. The applicable prospectus supplement will contain information, where applicable, as to any
other listing, if any, on the NYSE American or any securities market or other securities exchange of the securities covered by the prospectus
supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities,
where applicable.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 7 of this prospectus under the caption “Risk Factors” We may also
include specific risk factors in supplements to this prospectus under the caption “Risk Related to This Offering.” This
prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ,
2026.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may offer our ordinary shares, various series of debt securities or warrants,
and rights to purchase any of such securities, either individually or in units, in one or more offerings, with a total value of up to
$50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series
of securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of
that offering.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update
or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security
that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable
prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to
the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the
information and documents incorporated herein by reference and the additional information under the headings “Where You Can Find
More Information” and “Incorporation of Documents by Reference” before making an investment decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus.
No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by
reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell
only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume
that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and
that any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus or any sale of a security.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities unless it is accompanied by a prospectus supplement. To the extent there
are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with
the most recent date will control.
Unless
the context requires otherwise, in this prospectus, “we,” “us,” “our,” “the Company,”
“MMA” and similar references refer to Mixed Martial Arts Group Limited and its consolidated subsidiaries.
This
prospectus includes statistical, market and industry data and forecasts which we obtained from publicly available information and independent
industry publications and reports that we believe to be reliable sources. These publicly available industry publications and reports
generally state that they obtain their information from sources that they believe to be reliable, but they do not guarantee the accuracy
or completeness of the information. Although we believe that these sources are reliable, we have not independently verified the information
contained in such publications. In addition, assumptions and estimates of our and our industry’s future performance are necessarily
subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the “Risk Factor Summary”.
These and other factors could cause our future performance to differ materially from our assumptions and estimates.
Some
of our trademarks and trade names are used in this prospectus, which are intellectual property owned by the Company. This prospectus
also includes trademarks, trade names, and service marks that are the property of other organizations. Solely for convenience, our trademarks
and trade names referred to in this prospectus appear without the TM symbol, but those references are not intended to indicate,
in any way, that we will not assert, to the fullest extent under applicable law, our rights, or the right of the applicable licensor
to these trademarks and trade names.
All
references in the prospectus to “U.S. dollars,” “dollars,” “US$” and “$” are to the legal
currency of the United States and all references to “A$” are to the legal currency of Australia.
PROSPECTUS
SUMMARY
This
summary provides a brief overview of information contained elsewhere in this prospectus and is qualified in its entirety by the more
detailed information included elsewhere in this prospectus. Because it is abbreviated, this summary does not contain all of the information
that you should consider before investing in our securities. You should read the entire prospectus carefully before making an investment
decision.
Overview
MMA.INC
is building the digital infrastructure for the future of combat sports. The big idea is simple: take the world’s fastest-growing
sports vertical and give it the connective tissue it’s never had. Our mission is to convert an estimated 700 million global fans
of mixed martial arts into active participants at scale.
We
believe the next decade will see martial arts rise from a fragmented industry to a consolidated mainstream. We are positioning MMA.INC
to make that transition possible. The recently announced media rights deal between the UFC and Paramount/CBS beginning in 2026 was another
significant step forward for the industry, and we expect to see significant visibility and engagement spikes for the sport.
MMA,
as a fragmented, very fast-growing sport, will benefit from a consolidated platform that serves everyone in the ecosystem, whether it
be the fan, fighter, coach or gym owner. The sport has never had more global visibility, yet the infrastructure to convert that interest
into participation just hasn’t existed. Hundreds of millions of fans watch fights, follow fighters, and engage with the culture,
but there is no streamlined path to get them into gyms to train. We are seeking to bridge that gap.
The
MMA fan base and addressable market, with hundreds of thousands of martial arts academies globally and a fan base measured in the hundreds
of millions. Our strategy is to partner with gyms, not own them. Our platform aims to be a technology tool that helps owner-operators
acquire, onboard, and retain customers without heavy capex. We connect MMA fans to training programs and gyms, make onboarding seamless
for gyms, and monetize through subscriptions and an expanding stack of services.
Together,
BJJLink and our renowned “Warrior Training Program” connect MMA fans’ energy and the gyms, coaches, and communities
providing pathways to lifelong participation. We aim to solve two problems at once: making it easier for fans to take their first step
into training, and giving academies new members and the tools to run more efficiently, retain customers, and grow revenue. That combination
is powerful because it aligns everyone’s interests: fans get access, gyms get customers, and the sport gets stronger.
Our
platform is built to capture sector growth by leveraging existing “owner-operator” gyms and coaching relationships without
the overhead or slow onboarding. Each new academy we onboard and each new fan starting our program increases our network effect and extends
our first-mover advantage.
Our
ordinary shares are listed on the NYSE American under the symbol “MMA.”
Strategic
Advisors and Partners
We
have strong support from key investors and strategic advisors, including:
Donald
Trump Jr. is a business executive, media figure, and co-founder of World Liberty Financial. His appointment as our Strategic
Advisor adds global recognition and brand-building expertise and will provide strategic counsel to our board and management team.
Conor
McGregor is our investor, Strategic Advisor and a passionate advocate for what we’re building at MMA.INC. His global
reach, exceptional marketing instincts, and ability to command attention augment our business, providing us with access to more
partners, sponsors and media coverage.
We
have also partnered with one of the largest names in MMA inspired fitness, UFC GYM. In September 2024, we entered into a multi-year strategic
partnership aimed at launching branded programs, amateur fight events, and training platforms across more than 150 UFC Gym locations
worldwide. Further, UFC GYM selected BJJLink as the operating platform for its new Brazilian jiu-jitsu franchise expansion, with forty-five
new academies are due to open in 2026.
Our
Advisory Board described above work with our executive team, which includes industry leaders like John Kavanagh and Rich Chou, to give
us a powerful edge in networking, distribution, brand trust, and the ability to identify and attract incredible growth opportunities,
like our partnership with UFC Gym.
Market
Opportunity
With
700 million combat sports fans worldwide, mixed martial arts has reached unprecedented popularity. We benefit from the sector’s
growth, driven by major MMA leagues like UFC, PFL, ONE Championship, and Bellator, whose marketing efforts expand the sport’s fan
base.
Our
goal is to convert this interest into engagement through our premium online and in-gym training experiences. According to IBISWorld statistics,
there are currently over 46,500 martial arts and combat sports gyms in the US alone that generated annual revenues of approximately $19.4
billion in 2024. Additionally, according to Sports & Fitness Industry Association’s Single Sport Reports for Martial Arts and
Boxing Fitness, it is estimated that more than 11.8 million people engaged in various martial arts and combat sports disciplines in 2023.
Our
business model complements existing industry players without cannibalizing their market. As the Company scales, its first-mover advantage
in grassroots MMA participation unlocks significant potential, especially in North America, where the martial arts industry is projected
to reach 67,000 gyms by the end of 2025, with fanbase growth accelerating exponentially.
Our
Products and Platform
Our
business is subscription-driven. Customers join our ecosystem to train in the gym or online with top-tier coaches. Price points range
from entry-level digital access to premium, immersive, five-day-a-week training programs. The wide spectrum of offerings lets us meet
people where they currently are - budget, schedule, and ambition - and then allow them to increase their commitments as their engagement
deepens.
For
gym operators, the economics improve as adoption grows. Software adoption allows for strong retention, margins grow as usage of digital
tools rises, and our customer acquisition cost remains attractive because content and community engagement convert fans into customers
more efficiently than advertising does. With distribution scale from branded partnerships like UFC GYM, we anticipate that revenue will
become increasingly more recurring and predictable, while also enabling us to introduce additional monetization channels, including e-commerce,
athlete management tools, and advanced fan engagement features, within the same user base.
Our
products cater to a wide range of users, from gym owners and coaches to fans and participants, with B2C subscription prices ranging from
US$9 to US$550 per month and B2B subscriptions ranging from US$49 to US$149 per month plus transaction fees on transactions processed
through our platform, enhancing revenue streams through a combination of subscriptions, transactions fees, and partnership opportunities.
We
expect to launch our Community and Commerce Platform in 2026, a mobile-first, multi-device app designed to unify the global martial arts
community into a single, monetized ecosystem. This platform will offer fans, participants, coaches, and gym owners a seamless experience
to connect, engage, and transact within the sport. This platform is aimed to appeal to the 700 million MMA fan base and ultimately provide
both a free and premium subscription to access the platform.
As
we prepare to release our tokenised rewards and loyalty Community and Fan platform in 2026, our goal is to enable the community to “get
paid to train”, whereby they can earn experience points (“XP”) and cryptocurrency rewards for training and engagement
that could be used both on the platform and within our verified partner network.
Our
Next Growth Engines
Our
future growth strategy is driven by clear principles that focus on building an integrated ecosystem to empower coaches, engage participants,
and drive sustainable revenue. We aim to surpass current industry leaders by creating a global platform that connects the entire martial
arts community.
Our
platform is designed to fuel revenue growth by combining B2C and B2B subscriptions with transaction fees for services and products offered
by gyms, coaches, and athlete influencers. As fans and participants engage with the platform, connecting with these offerings, we capture
additional value from every transaction, driving sustained growth across the entire ecosystem.
We
intend to continue to invest in technology to enhance the experience for all participants on the Company’s Community Platform,
namely customers, coaches and gym owners, in order to drive lifetime value and expand sales channels through referrals and organic promotion.
In
October 2025, we announced our development of our blockchain initiatives and a Web 3.0 ecosystem as part of our growth strategy. In October
2025, we also commenced deploying our utility token on the Solana testnet, our first step towards validating our Web 3.0 ecosystem that
fuses combat sports, blockchain and artificial intelligence. In addition, we are building a rewards platform to enhance community engagement
through tokenized rewards, enabling users to “Get Paid to Train.”. The testnet release enables MMA.INC to simulate full ecosystem
activity, including minting, staking, XP accumulation, and rewards distribution, while also introducing AI-powered analytics that assess
user performance, engagement, and progression. As part of the planned launch, it is expected that rewards and loyalty points will be
distributed to MMA.INC’s existing community of students, coaches, athletes and partner gyms who have already been contributing
to the ecosystem’s growth.
The
MMA.INC Utility Token is currently in development and not yet available for public sale, purchase or trading. MMA.INC strongly advises
the public to avoid any third-party tokens claiming to represent or be affiliated with the Company. Official information on token
deployment and platform launch will be communicated only through www.mma.inc/Token and verified Company channels.
Corporate
Information
We
were incorporated on March 27, 2013 under the laws of Australia under the name Wimp 2 Warrior Limited and changed our name to Alta Global
Group Limited on February 2, 2022, and to Mixed Martial Arts Group Limited on December 5, 2024.
Our
principal executive offices are located at Level 1, Suite 1, 29-33 The Corso, Manly, New South Wales 2095, and our telephone number there
is +61 1800 151 865. Our website address is https://www.mma.inc. The information contained on our website is not incorporated
by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website
as part of this prospectus or in deciding whether to purchase our securities.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.235 billion in revenues during our last fiscal year, we qualify as an emerging growth company as defined
in the Jumpstart Our Business Startups Act (“JOBS Act”) enacted in 2012. As an emerging growth company, we expect to take
advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not
limited to:
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being
permitted to present only two years of audited financial statements, in addition to any required unaudited interim financial statements,
with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
disclosure in this prospectus; |
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not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley
Act”); |
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reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and |
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exemptions
from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
We
may take advantage of these provisions until the last day of our fiscal year following the fifth anniversary of the completion of our
initial public offering, or June 30, 2029. However, if certain events occur prior to the end of such five-year period, including if we
become a “large accelerated filer,” our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion of
non-convertible debt in any three-year period, we will cease to be an emerging growth company prior to the end of such five-year period.
The
JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised
accounting standards. As an emerging growth company, we intend to take advantage of an extended transition period for complying with
new or revised accounting standards as permitted by the JOBS Act. We have elected to take advantage of certain of the reduced disclosure
obligations in this prospectus and in the registration statement of which this prospectus is a part and may elect to take advantage of
other reduced reporting requirements in future filings. As a result, the information in this prospectus and that we provide to our shareholders
in the future may be different than what you might receive from other public reporting companies in which you hold equity interests.
Implications
of Being a Foreign Private Issuer
We
are a “foreign private issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities
Act”). In our capacity as a foreign private issuer, we are exempt from certain rules under the Exchange Act that impose certain
disclosure obligations and procedural requirements for proxy solicitations under Section 14 of the Exchange Act. In addition, our officers,
directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions of Section
16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases and sales of our Ordinary Shares. Moreover,
we are not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act. In addition, we are not required to comply with Regulation FD, which restricts the
selective disclosure of material information.
We
may take advantage of these exemptions until such time as we are no longer a foreign private issuer. We would cease to be a foreign private
issuer at such time as more than 50% of our outstanding voting securities are held by U.S. residents and any of the following three circumstances
applies: (1) the majority of our executive officers or directors are U.S. citizens or residents, (2) more than 50% of our assets are
located in the United States or (3) our business is administered principally in the United States.
As
a foreign private issuer, we have taken advantage of certain reduced disclosure and other requirements in this prospectus and may elect
to take advantage of other reduced reporting requirements in future filings. Accordingly, the information contained herein or that we
provide shareholders may be different than the information you receive from other public companies in which you hold equity securities.
Offerings
Under This Prospectus
Under
this prospectus, we may offer ordinary shares, preferred shares, various series of debt securities or warrants or rights to purchase
any of such securities, either individually or in units, with a total value of up to $50,000,000, from time to time at prices and on
terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement
that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation
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aggregate
principal amount or aggregate offering price; |
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maturity,
if applicable; |
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rates
and times of payment of interest or dividends, if any; |
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redemption,
conversion or sinking fund terms, if any; |
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voting
or other rights, if any; and |
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conversion
or exercise prices, if any; |
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aggregate
principal amount or aggregate offering price; |
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maturity,
if applicable; |
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rates
and times of payment of interest or dividends, if any; |
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redemption,
conversion or sinking fund terms, if any; |
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voting
or other rights, if any; and |
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conversion
or exercise prices, if any. |
The
prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by
reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters,
we will include in the applicable prospectus supplement:
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the
names of those agents or underwriters; |
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applicable
fees, discounts and commissions to be paid to them; |
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details
regarding over-allotment options, if any; and |
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the
net proceeds to us. |
This
prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK
FACTORS
Investing
in our securities involves significant risk. The prospectus supplement applicable to each offering of our securities will contain a discussion
of the risks applicable to an investment in the company. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by
reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk
Factors” included in our most recent Annual Report on Form 20-F and any subsequent Annual Reports on Form 20-F we file after the
date of this prospectus, and all other information contained in or incorporated by reference into this prospectus or the registration
statement of which this prospectus forms a part, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended,
or the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement before acquiring any
of our securities. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect
our operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act that relate to future events
or our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results,
levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Words such as, but not limited to, “believe,” “expect,”
“anticipate,” “estimate,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “targets,” “likely,” “will,” “would,” “could,”
“should,” “continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are
intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although
we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference
in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown
risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed
or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our Annual Report on Form
20-F for the fiscal year ended June 30, 2025, titled “Business Overview,” “Risk Factors,” and “Operating
and Financial Review and Prospects,” as well as other sections in this prospectus and the documents or reports incorporated by
reference in this prospectus, discuss some of the factors that could contribute to these differences.
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place
undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations
disclosed in the forward-looking statements we make. We have included important cautionary statements in this prospectus or in the documents
incorporated by reference in this prospectus, particularly in the “Risk Factors” section, that we believe could cause actual
results or events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer
to the section titled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties
under “Risk Factors” contained in any supplements to this prospectus and in our most recent Annual Report on Form 20-F, as
revised or supplemented by our subsequent periodic reports filed under the Exchange Act, as well as any amendments thereto, as filed
with the SEC and which are incorporated herein by reference. The information contained in this document is believed to be current as
of the date of this document. We do not intend to update any of the forward-looking statements after the date of this document to conform
these statements to actual results or to changes in our expectations, except as required by law.
In
light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in
this prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance
on the forward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference
in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking
statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable
to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred
to in this section.
CAPITALIZATION
A
prospectus supplement or report on Form 6-K incorporated by reference into the registration statement of which this prospectus forms
a part will include information on our consolidated capitalization.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this
prospectus for general corporate purposes, including, but not limited to, working capital, capital expenditures, investments, acquisitions,
should we choose to pursue any, and collaborations. We have not determined the amounts we plan to spend on any of the areas listed above
or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we
receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as
described above, we may initially invest the net proceeds in short-term, investment-grade and interest-bearing securities.
PLAN
OF DISTRIBUTION
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block
trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly
to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more
transactions at:
| |
● |
a
fixed price or prices, which may be changed from time to time; |
| |
|
|
| |
● |
market
prices prevailing at the time of sale; |
| |
|
|
| |
● |
prices
related to the prevailing market prices; or |
| |
|
|
| |
● |
negotiated
prices. |
We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers
to purchase the securities from time to time, and may enter into arrangements for “at-the-market,” equity line or similar
transactions. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we 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.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter
will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the
securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts,
concessions or commissions.
With
respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement
information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and
any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable
prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases
be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
| |
● |
the
purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which that institution is subject; and |
| |
|
|
| |
● |
if
the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased
such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility
in respect of the validity or performance of delayed delivery contracts. |
One
or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates,
in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or
as our agents. These remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus
supplement will identify and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing
firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing
firms may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary
course of business.
Certain
underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related
to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions
may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority,
Inc., or FINRA.
Our
ordinary shares sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading
on the NYSE American. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any,
on the NYSE American or any securities market or other securities exchange of the securities covered by the prospectus supplement. Underwriters
may make a market in our ordinary shares, but will not be obligated to do so and may discontinue any market making at any time without
notice. We can make no assurance as to the liquidity of or the existence, development or maintenance of trading markets for any of the
securities.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve
the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in
the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of
their business.
DESCRIPTION
OF SHARE CAPITAL
The
following descriptions are summaries of the material terms of our Constitution. Reference is made to the more detailed provisions of
the Constitution. Please note that this summary is not intended to be exhaustive. For further information please refer to the full version
of our Constitution which is included as an exhibit to this registration statement.
General
We
are a public company limited by shares registered under the Corporations Act which is regulated by the Australian Securities and Investments
Commission, or ASIC. Our corporate affairs are principally governed by our Constitution and the Corporations Act.
Generally
speaking, the terms of our Constitution are not significantly different than a U.S. company’s charter documents, except we do not
have a limit on our authorized share capital and the concept of par value is not recognized under Australian law.
Subject
to restrictions on the issue of securities in our Constitution and the Corporations Act and any other applicable law, we may at any time
issue shares and grant options or warrants on any terms, with the rights and restrictions and for the consideration that our board determines.
The
rights and restrictions attaching to Ordinary Shares are derived through a combination of our Constitution, the common law applicable
to Australia, the Corporations Act and other applicable law. A general summary of some of the rights and restrictions attaching to our
Ordinary Shares are summarized below. Each ordinary shareholder is entitled to receive notice of, and to be present, vote and speak at,
general meetings.
Our
Constitution
Our
Constitution is similar in nature to the bylaws of a U.S. corporation. It does not provide for or prescribe any specific objectives or
purposes of MMA. It may be amended or repealed and replaced by special resolution of shareholders, which is a resolution passed by at
least 75% of the votes cast by shareholders entitled to vote on the resolution.
Under
Australian law, a company has the legal capacity and powers of an individual both within and outside Australia. The material provisions
of our Constitution are summarized below. This summary is not intended to be complete nor to constitute a definitive statement of the
rights and liabilities of our shareholders. Our Constitution is filed as an exhibit to this registration statement.
Interested
Directors
A
director who has a material personal interest in a matter that is being considered at a meeting of directors must not be present while
the matter is being considered at the meeting or vote on that matter except where permitted by the Corporations Act.
Directors’
Compensation
Pursuant
to our Constitution, the total aggregate fixed sum per annum to be paid to the directors (excluding salaries of executive directors)
from time to time will not exceed the sum determined by the shareholders in a general meeting and the total aggregate fixed sum will
be divided among the directors as the directors shall determine and, in default of agreement between them, then in equal shares.
Remuneration
payable by the Company to the Managing Director and any other executive Directors may be by way of salary, bonuses, or any other elements
but must not include a commission on, or percentage of, operating revenue.
Powers
Exercisable by Directors
Pursuant
to our Constitution (subject to the Corporations Act), the management and control of our business affairs are vested in our board. Subject
to the Corporations Act, our board has the power to raise or borrow money, and charge any of our property or business or any uncalled
capital, and may issue debentures or give any other security for any of our debts, liabilities or obligations or of any other person,
in each case, in the manner and on terms it deems fit.
Rotation
of Directors
Pursuant
to our Constitution, there must be an election of Directors at the Company’s annual general meeting. Upon the Company’s admission
to a Financial Market, no director except a Managing Director shall hold office for a period of three years, or beyond the third annual
general meeting following the Director’s election, whichever is the longer, without submitting themselves for re-election. If no
Director is standing for election or re-election, then the directors to retire at an annual general meeting are those who have been longest
in office since their last election and if there are 2 or more who were elected on the same day, then the Director to retire will be
decided by lot, unless the relevant Directors agree otherwise.
Rights
and Restrictions on Classes of Shares
Subject
to the Corporations Act, the rights attaching to our Ordinary Shares are detailed in our Constitution. Our Constitution provides that
the Board may issue shares from time to time with preferred, deferred or other special rights, whether in relation to dividends, voting,
return of share capital, or otherwise. Subject to the Corporations Act, or any rights and restrictions attached to a class of shares
currently on issue, we may issue further shares on such terms and conditions as our board resolves. Currently, our outstanding share
capital consists of only Ordinary Shares.
Dividend
Rights
Subject
to the Corporations Act, our board may from time to time determine to pay any interim, special or final dividends to shareholders, fix
the amount of dividend, the record date for determining entitlements to, and for payment of, a dividend and the method of payment of
a dividend.
Voting
Rights
Under
our Constitution, each shareholder has one vote determined by a show of hands at a meeting of the shareholders unless a poll is required
under the Constitution or the Corporations Act. On a poll vote, each shareholder shall have one vote for each fully paid share and a
fractional vote for each share that is not fully paid, such fraction being equivalent to the proportion of the amount that has been paid
to such date on that share. Shareholders may vote by proxy. Under Australian law, shareholders of a public company are not permitted
to approve corporate matters by written consent. Our Constitution does not provide for cumulative voting.
Right
To Share in Our Profits
Subject
to the Corporations Act and pursuant to our Constitution, our shareholders are entitled to participate in our profits only by payment
of dividends. Our board may from time to time determine to pay dividends to the shareholders; however, under the Corporations Act, we
must not pay a dividend unless: (a) our assets exceed our liabilities immediately before the dividend is declared and the excess is sufficient
for the payment of the dividend; (b) the payment of the dividend is fair and reasonable to our shareholders as a whole; and (c) the payment
of the dividend does not materially prejudice our ability to pay our creditors. Unless any share is issued on terms providing to the
contrary, all dividends are to be apportioned and paid proportionately to the amounts paid, or credited as paid on the relevant shares.
Rights
to Share in the Surplus in the Event of Liquidation
Our
Constitution provides for the right of shareholders to participate if there is a surplus of assets in the event of our liquidation.
No
Redemption Provision for Ordinary Shares
There
are no redemption provisions in our Constitution in relation to Ordinary Shares. Under our Constitution and subject to the Corporations
Act, redeemable preference shares may be issued and liable to be redeemed on the terms that they are issued, which may be at our option.
Variation
or Cancellation of Share Rights
The
rights attached to shares in a class of shares may only be varied or cancelled (unless otherwise provided by the terms of issue of Shares
in a class, in which case the procedure set out in the terms of issue applies), by either:
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● |
a
special resolution passed by members holding shares in the class; or |
| |
● |
the
written consent of members with at least 75% of the shares in the class. |
Liability
for Further Capital Calls
According
to our Constitution, the board may make any calls from time to time upon shareholders in respect of all monies unpaid on partly-paid
shares (if any), subject to the terms upon which any of the partly-paid shares have been issued. Each shareholder is liable to pay the
amount of each call in the manner, at the time, and at the place specified by the board. Calls may be made payable by installment. Failure
to pay a call will result in interest becoming payable on the unpaid amount and ultimately, forfeiture of those shares. As of the date
of this prospectus, all of our issued shares are fully paid.
Description
of Preferred Shares
The
following description of our Series A preferred shares, together with any additional information we include in any applicable prospectus
supplement or any related free writing prospectus, summarizes the material terms and provisions of the Series A preferred shares that
we may offer under this prospectus. The terms we have summarized below may not apply to any future series of preferred shares that we
may offer, and we will describe the particular terms of any class or series of these preferred shares in more detail in the applicable
prospectus supplement. For the complete terms of our preferred shares, please refer to the applicable prospectus supplement. The terms
of these securities will be affected by Australian law.
There
are 4,285,713 Series A preferred shares are outstanding as of the date of this prospectus. So long as any Series A preferred shares are
outstanding, the Company shall not, directly or indirectly, redeem, or declare or pay any cash dividend or distribution on, any securities
of the Company without the prior express written consent of the holders of Series A preferred shares. In the event that dividends are
consented to by the holders of Series A preferred shares, then the holders of Series A preferred shares shall be entitled to receive,
and the Company shall pay, dividends on Series A preferred shares equal (on an as-if-converted-to-Ordinary-Shares basis) to and in the
same form as dividends actually paid on shares of the Ordinary Shares when, as and if such dividends are paid on shares of the Ordinary
Shares. No other dividends shall be paid on shares of Series A preferred shares. For the purposes of the Constitution the “Dividend
Date” shall be the date on which a dividend is paid to actually paid to Ordinary Holders and the holders of Series A preferred
shares and the “Dividend Rate” shall be a formula equal to a one times multiple of the dividend paid to holders of Ordinary
Shares (for the avoidance of doubt, the dividend payable on an Ordinary Share and the Series A preferred shares (on an as converted basis)
shall be equal).
Upon
any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”), the entire
remaining assets and funds of the Company legally available for distribution, if any, shall be distributed first, to the holders of the
Series A preferred shares to account for unpaid dividends (if any), then in proportion to the Series A preferred shares owned by them,
and applied toward the payment of the Triggering Redemption Amount, and thereafter, any remainder shall then be distributed to the holders
of other preferred stock and Ordinary Shares in proportion of the number of such shares then held by them.
Holders
of Series A preferred shares have the same rights as holders of Ordinary Shares to: (a) receive notices of general meetings, reports
and accounts of the Company; and (ii) attend and be heard at general meetings of the Company, but do not have the right to vote at general
meetings except that such holders have the right to vote at general meetings: (a) on a proposal: (A) to reduce the Company’s share
capital; (B) that affects rights attached to Series A preferred shares; (C) to wind up the Company; or (D) to dispose of all or substantially
all of the Company’s property, business and undertaking; (b) on a resolution to approve the terms of a buy-back agreement under
the Australian Corporations Act 2001 (Cth); (iii) during a period in which a dividend or part of a dividend in respect of the Series
A preferred shares is in arrears; or (iv) on any question considered at a meeting held during the winding up of the Company.
The
holders of Series A preferred shares also have certain conversion rights at the option of the holder upon notice to the Company, and
shall be entitled to certain participation rights in subsequent offerings by the Company. The conversion price of the Series A preferred
shares is also subject to adjustment in the case of a stock split and other events.
Comparison
of Australian and Delaware Law
The
table below provides a summary of the Australian law applicable to MMA as an Australian public company, and certain rights attaching
to MMA’s shares. These laws and/or rights may be different to those which would apply if MMA were incorporated in Delaware and
subject to Delaware and US federal laws, the table below provides a summary comparison for illustrative purposes. Investors should also
carefully review the relevant risks highlighted in this section in this regard and the summary of the matters set forth under the section
entitled “Description of Share Capital”, as well as the copy of our Constitution (which is included as an exhibit to the
registration statement to which this prospectus forms a part), prior to investing in the Ordinary Shares.
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Share
capital |
|
The
Corporations Act does not:
●
prescribe the minimum amount of share capital that MMA should have;
●
prescribe a minimum issue price for each share in MMA; or
●
require MMA to place a maximum limit on the share capital that its members may subscribe.
Australian
law does not contain any concept of authorized capital or par value per share.
Under
Australian law and our Constitution, the issue price of shares is set by the MMA Directors collectively as a board at the time of
each issue. |
|
A
US company’s certificate of incorporation may authorize the issue of up to a maximum number of shares, which may consist of
different classes of shares and stipulate the par value for those shares. |
| |
|
|
|
|
| Issuing
additional shares |
|
Subject
to the Corporations Act, our Constitution authorizes the MMA Board to allot and issue securities in the capital of MMA to any person
on such terms and with such rights as the Board determines. |
|
A
US company’s by-laws will generally permit the issue of authorized and unissued shares
of any class by vote of the board of directors in such manner, for such consideration and
on such terms as the board of directors may determine, without stockholder approval.
Furthermore,
under the NYSE listing rules, a listed company will not be able to disparately reduce or restrict voting rights of the shares through
any corporate action or issuance. |
| |
|
|
|
|
| Transfer
of shares |
|
Under
Australian law and our Constitution, securities in MMA are generally freely transferable.
The
MMA Directors may however refuse to register a transfer of shares in limited circumstances as detailed in our Constitution, and where
the transfer would be contrary to the Corporations Act. |
|
Under
the Delaware General Corporation Law (“DGCL”), shares are generally freely transferable.
Transfer
of shares may be subject to restrictions imposed by US federal or state securities laws, by the certificate of incorporation or by-laws
or by an agreement signed with the holders of shares at issue.
Generally,
a transfer of shares shall be made only on the transfer books of a Delaware incorporated company or by a transfer agent designated
to transfer shares of a Delaware incorporated company. Where a Delaware incorporated company Shares are certificated, certificates
must be surrendered for cancellation before a new certificate, if any, is issued. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Dividends
and distributions |
|
Our
Constitution permits the Board to declare dividends to shareholders from time to time in
its sole discretion.
Under
the Corporations Act, a company may only pay a dividend where, in summary, the company’s assets exceed its liabilities at the
relevant time to the extent of the dividend to be declared, the payment is fair and reasonable to the company’s shareholders
as a whole and does not materially prejudice the company’s ability to pay its creditors. |
|
Under
the DGCL, the board of directors of a company incorporated in Delaware is permitted to declare
and pay dividends to stockholders either:
●
out of that company’s surplus, which is defined to be the net assets less statutory capital; or
●
if no surplus exists, then out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal
year, provided that the capital of the corporation is not less than the aggregate amount of the capital represented by the corporation’s
outstanding stock of all classes having a preference on distribution of assets.
Holders
of common stock will generally be entitled to receive dividends when and as declared by the company’s Board out of funds legally
available for that purpose. |
| |
|
|
|
|
| Voting
rights and Quorum Requirements |
|
Our
Constitution provides that:
●
on a show of hands each individual present who is a member, proxy, attorney or representative of a member entitled to vote has one
vote;
●
on a poll each shareholder has one vote for every fully paid share held and a fraction of a vote for each partly paid share held,
with the fraction of the vote being equivalent to the portion of the share paid up; and
●
two shareholders present constitutes a quorum. |
|
Generally
speaking, a company incorporated in Delaware’s certificate of incorporation provides that each stockholder is entitled to one
vote for each share of capital stock entitled to vote, unless otherwise provided by the DGCL or the company’s governing documents. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Variation
in rights |
|
Under
the Corporations Act, if a company has a constitution that sets out a procedure for varying
or cancelling rights attached to shares in a class of shares, those rights may be varied
or cancelled only in accordance with the procedure.
Under
our Constitution, the rights may only be varied or cancelled:
●
with the consent in writing of the holders of at least 75% of the issued Shares of that class; or
●
with the sanction of a special resolution passed at a separate general meeting of the holders of the Shares of the class.
The
company must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or
cancellation is made.
The
Corporations Act also provides that where shareholders in an affected class do not all agree (whether by resolution or written consent)
to the:
●
variation or cancellation of their rights; or
●
a modification to the relevant constitution to allow rights to be varied or cancelled,
then
shareholders with at least 10% of the votes in the affected class may apply to the court (within a limited time frame) to have the
variation, cancellation or modification set aside.
Subject
to the shares’ terms of issue, the rights attached to a class of shares are not deemed varied by the issue of further shares
of that class. |
|
Under
the DGCL, any amendment to the company incorporated in Delaware’s certificate of incorporation
requires approval by holders of the outstanding shares of a particular class if that amendment
would:
●
increase or decrease the aggregate number of authorized shares of that class;
●
increase or decrease the par value of the shares of that class; or
●
alter or change the powers, preferences or special rights of the shares of that class so as to affect them adversely.
If
an amendment would alter or change the powers, preferences or special rights of one or more series of any class so as to adversely
affect that series without adversely affecting the entire class, then only the shares of the series so affected shall be considered
a separate class and entitled to such separate class approval of the proposed amendment.
Under
the DGCL, amendments to a company incorporated in Delaware’s certificate of incorporation also generally require:
●
a board resolution recommending the amendment; and
●
approval of a majority of the outstanding shares entitled to vote and a majority of the outstanding shares of each class entitled
to vote.
Certain
amendments to the relevant company’s certificate of incorporation could, in the future, require approval of only the majority
of the shares of the then issued and outstanding preferred stock, because the DGCL and the company’s certificate of incorporation
permit the company to issue preferred shares with powers, preferences and rights superior to those of common stock.
Pursuant
to a company incorporated in Delaware’s by-laws, a company incorporated in Delaware’s by-laws or certificate of incorporation
may be adopted, amended or repealed by the board of directors or by the affirmative vote of the holders of a majority of the voting
power of all of the shares of the corporation then issued and outstanding and entitled to vote generally in any election of directors,
voting together as a single class. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Related
party and director transactions |
|
The
Corporations Act governs the provision of financial benefits to related parties of public
companies and requires that shareholder approval is obtained prior to financial benefits
being provided to related parties or giving the financial benefit falls within a specific
exception set out in the Corporations Act (for example, a benefit given on arms’ length
terms or the reasonable remuneration or reimbursement of an officer or employee).
Directors,
when entering into transactions with MMA, are also subject to the Australian common law and statutory duties to avoid actual and
potential conflicts of interest. There are also disclosure requirements and voting restrictions imposed on directors under the Corporations
Act on matters involving a material personal interest.
Within
the parameters summarized above, under our Constitution a director’s position as such does not disqualify that person from:
●
holding any other office or place of profit or employment (except with MMA’s auditor), on such terms as the MMA Directors approve;
●
being a shareholder in or a director of a company promoted by MMA or in which MMA may be interested as a vendor, shareholder or otherwise;
or
●
entering into an agreement with MMA.
A
director must also comply with:
●
the material personal interest provisions set out in section 191 of the Corporations Act; and
●
section 195 of the Corporations Act in relation to being present and voting at a board meeting that considers a matter in which he
or she has a material personal interest. |
|
Under
the DGCL, no contract or transaction between a company incorporated in Delaware and one or
more of its directors or officers, or between the relevant company and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers or have a financial interest will be void or voidable solely for
that reason, or solely because the relevant director or officer is present at or participates
in the company board or committee meeting that authorizes the contract or transaction, or
solely because the vote of the relevant director or officer is counted for that purpose,
if:
●
the material facts as to the director’s or officer’s relationship or interest, and as to the contract or transaction,
are disclosed or known to the board of directors or committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or
●
the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are
disclosed or known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or
●
the contract or transaction is fair to the company as of the time that it is authorized, approved or ratified by the board of directors,
committee or stockholders. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Protection
against oppression of shareholders |
|
The
Corporations Act empowers the court to make any order it considers appropriate if conduct
of a company’s affairs is found to be oppressive to a member or members.
Such
orders may include winding up, regulating the conduct of the company’s affairs, authorizing a member to institute derivative
proceedings or requiring a person to engage in or abstain from specified conduct. |
|
The
DGCL contains no equivalent statutory provisions. However, Delaware law may provide judicial remedies to stockholders in comparable
circumstances. |
| |
|
|
|
|
| Buy-back
of shares |
|
The
Corporations Act allows MMA to buy-back its own shares through a specific buy-back procedure
provided that:
●
the buy-back does not materially prejudice MMA’s ability to pay its creditors; and
●
MMA follows the relevant procedures set out in the Corporations Act.
The
buy-back procedure includes the form of shareholder approval (for example, ordinary, special or unanimous resolutions), a notice
period and disclosure to be given to the shareholders, depending on the type of buy-back to be undertaken. |
|
The
DGCL generally permits a Delaware incorporated company to purchase or redeem its outstanding
shares out of funds legally available for that purpose without obtaining stockholder approval,
provided that:
●
the capital of a Delaware incorporated company is not impaired;
●
such purchase or redemption would not cause the capital of a Delaware incorporated company to become impaired;
●
the purchase price does not exceed the price at which the shares are redeemable at the option of a Delaware incorporated company;
and
●
immediately following any such redemption a Delaware incorporated company shall have outstanding one or more shares of one or more
classes or series of stock, which shares shall have full voting powers. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Takeovers |
|
The
Corporations Act prohibits the acquisition of a relevant interest in voting shares of a company
where the acquisition would increase a person’s voting power in the company to over
20% or increases from a starting point that is above 20% and below 90%, except in certain
circumstances.
The
Corporations Act also sets out disclosure requirements for persons who have or cease to have a substantial holding in a company.
Compulsory acquisition is permitted by holders with an interest of 90% or more of a class of securities.
Certain
exceptions to this general takeover prohibition are set out in the Corporations Act, including:
●
an acquisition resulting from a scheme of arrangement undertaken in accordance with the Corporations Act and approved by the court;
and
●
an acquisition that results from the acceptance of an offer under a takeover bid.
In
this respect, any takeover bid made for MMA must be on the same terms for all shareholders, subject to minor exceptions, and must
comply with the timetable, disclosure and other requirements set out in the Corporations Act.
The
purpose of these provisions is to seek to ensure that shareholders in a target company that they have a reasonable and equal opportunity
to share in any premium for control and that they are given reasonable time and sufficient information to assess the merits of the
proposal. |
|
Section
203 of the DGCL applies to a company and provides that if a holder acquires 15% or more of
a company’s voting stock (an “Interested Holder”) without prior approval
of the board of directors, then for three years a company cannot engage in a broad range
of business combinations with such Interested Holder. Such business combinations include
(a) certain mergers or consolidations with the Interested Holder or entities affiliated with
the Interested Holder,
(b)
certain sales, leases, exchanges, mortgages, pledges, transfers or other dispositions of the company assets to the Interested Holder,
which assets have an aggregate market value equal to 10% or more of either all of the assets of a company or all of the outstanding
stock of a company,(c) certain transactions which result in the issuance or transfer by a company or by any direct or indirect majority
owned subsidiary, to the Interested Holder, of any stock of a company or of such a company subsidiary, (d) certain transactions involving
a company or any direct or indirect majority-owned subsidiaries which have the effect, directly or indirectly, of increasing the
proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the
company or such subsidiary which is owned by the Interested Holder, except as a result of immaterial changes due to fractional share
adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly by the Interested
holder, and (e) any receipt by the Interested Holder of the benefit, directly or indirectly (except proportionately as a stockholder
of the company), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted by
Section 203(c)(3)(i)-(iv)) provided by or through the company or any direct or indirect majority-owned subsidiary.
The
Section 203 limitation would not apply if (a) the business combination was approved by the board of directors of the company before
the holder became an Interested Holder, (b) the business combination is subsequently approved by the a company board of directors
and also by two-thirds of the a company stock held by persons other than such Interested Holder at an annual or special meeting of
stockholders, or (c) upon consummation of the transaction which resulted in the stockholder becoming an Interested Holder of the
company, the Interested Holder owned at least 85% of the company’s voting stock which was outstanding at the time the transaction
commenced (excluding stock owned by any directors who are also officers and certain employee stock plans).
The
effect of the restriction is to give the company’s board of directors the ability to prevent or inhibit an unsolicited takeover
attempt initiated through a merger or asset purchase proposal. It may also dissuade unsolicited tender offer proposals unless the
offeror is confident of achieving the 85% shareholding level via the tender offer. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Annual
shareholder meetings |
|
Under
the Corporations Act, the annual general meeting of MMA is required to be held at least once every calendar year and within five
months after the end of each financial year. |
|
The
DGCL requires a company incorporated in Delaware to have an annual stockholders’ meeting
to elect directors, unless directors are elected by written consent in lieu of an annual
meeting.
Under
the DGCL, a director or stockholder of a company incorporated in Delaware may petition the Court of Chancery of Delaware for an order
compelling the holding of an annual meeting if:
|
| |
|
|
|
|
|
| |
|
|
|
● |
no
annual meeting has been held, or action by written consent to elect directors in lieu of an annual meeting has been taken, for a
period of 30 days after the date designated for the annual meeting; or |
| |
|
|
|
|
|
| |
|
|
|
● |
no
date for an annual meeting has been designated for a period of 13 months after the latest to occur of the company’s organization,
the last annual meeting or the last action by written consent to elect directors in lieu of an annual meeting. |
| Shareholders’
right to request or requisition a general meeting |
|
The
Corporations Act requires the Directors to call a general meeting on the request of members
with at least 5% of the vote that may be cast at the general meeting or at least 100 Shareholders
who are entitled to vote at a general meeting.
Shareholders
with at least 5% of the votes that may be cast at the general meeting may also call and arrange to hold a general meeting at their
own expense. |
|
Annual
meetings of stockholders shall be held at a time designated by or in the manner provided
in the bylaws.
Special
meetings of stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate
of incorporation or by the bylaws. |
| |
|
|
|
|
| Notice
of Meetings |
|
The
Corporations Act requires at least 28 days’ notice of a general meeting of company listed on a financial exchange. |
|
The
DGCL provide that notice of a stockholders’ meeting be delivered not less than ten days nor more than 60 days before the date
of the meeting to each stockholder entitled to vote at such meeting, except as otherwise provided in the company’s by-laws
or as required by the DGCL. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Remuneration
reports |
|
The
Corporations Act requires that a public company’s annual report must include a report
by the Directors on the company’s remuneration framework (remuneration report).
At
the company’s annual general meeting, shareholders must vote to approve or reject the remuneration report.
The
vote on the resolution is advisory only and does not bind the directors or the company. However, if the company’s remuneration
report receives a ‘no’ vote of 25% of more, the company’s subsequent remuneration report must explain whether and
how shareholders’ concerns have been taken into account.
If
the company’s subsequent remuneration report receives a ‘no’ vote of 25% or more, shareholders will vote at the
same annual general meeting to determine whether the directors (other than the managing director) will need to stand for re-election
within 90 days.
If
the resolution passes, then the ‘spill meeting’ at which the directors face re-election, will take place within 90 days.
Our
Constitution provides that the directors are entitled to be remunerated. The extend of such remuneration shall be determined by the
MMA Board, subject to laws relating to the giving of benefits to related parties, and to the extent applicable, any maximum amount
that is from time to time approved by the shareholders of the company in a general meeting in accordance with any applicable listing
rules.
Our
Constitution also provides that:
●
the remuneration may be provided in the form of shares or other securities of the company or any subsidiary of the company, or options
or rights to acquire such shares or other securities, on such terms as the MMA Board may decide; and
●
the directors may also be paid all travelling, and other expenses properly incurred by them: (a) in attending and returning from:
(i) meetings of directors or any committee; or (ii) general meetings of the company; or (b) otherwise in connection with the business
of the company. |
|
In
the U.S., the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (U.S.) requires
all ‘reporting companies’ to have an advisory Shareholder vote on pay at least
once every three years.
Companies
must report the results and say how they have responded to these when making decisions on pay the following year.
So
long as MMA qualifies as an ‘emerging growth company,’ it will not be required to hold an advisory Shareholder vote on
pay.
The
Company will be an emerging growth company until the earliest of: (i) the last day of the fiscal year in which our annual gross revenues
exceed $1.235 billion, (ii) the last day of the fiscal year following the fifth anniversary of the date of the first sale of common
equity securities of the company pursuant to an effective registration statement under the Securities Act of 1933, (iii) the date
on which the Company has, during the previous three year period, issued more than $1 billion in non-convertible debt, or (iv) the
date that we become a ‘large accelerated filer’ as defined in Rule 12b-2 under the U.S. Exchange Act.
A
company becomes a large accelerated filer if it meets the following conditions as of the end of its fiscal year: (i) it has an aggregate
worldwide market value of the voting and non-voting common equity held by non-affiliates of $700 million or more as of the last business
day of its second fiscal quarter; (ii) it has been subject to the requirements of Section 13(a) or 15(d) of the U.S. Exchange Act
for at least 12 months; (iii) it has filed at least one annual report pursuant to Section 13(a) or 15(d) of the U.S. Exchange Act;
and (iv) it is not eligible to rely on certain requirements for smaller reporting companies for its annual and quarterly reports. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Approval
of Corporate Matters by Written Consent |
|
Our
Constitution provides that anything which may be done by resolution of the Company in a general meeting, may be done by written resolution. |
|
Unless
otherwise specified in a corporation’s certificate of incorporation, shareholders may take action permitted to be taken at
an annual or special meeting, without a meeting, prior notice or a vote, if consents, in writing, setting forth the action, are signed
by shareholders with not less than the minimum number of votes that would be necessary to authorize the action at a meeting. All
consents must be dated and are only effective if the requisite signatures are collected within 60 days of the earliest dated consent
delivered. |
| |
|
|
|
|
| Special
resolutions |
|
Under
the Corporations Act, a special resolution must be a resolution that is passed by at least
75% of the votes cast by members entitled to vote on the resolution.
Approval
by special resolution of shareholders is required for actions such as modifying or repealing our Constitution, changing MMA’s
name or company type, selectively reducing or buying back capital (in some circumstances), providing financial assistance in connection
with the acquisition of shares in the company, and undertaking a voluntary winding up of MMA. |
|
The
DGCL contains no concept of special resolutions. |
| |
|
|
|
|
| Removing
directors |
|
The
Corporations Act provides that a public company may by resolution at a general meeting remove
a director from office.
Notice
of intention to move the resolution must be given by the company at least 2 months before the meeting is to be held, and the company
must notify the director as soon as possible after notice of the intention is received. |
|
Subject
to certain exceptions, the DGCL provides that directors may be removed with or without cause by the affirmative vote of the holders
of a majority of the voting power of all of the outstanding shares of capital stock entitled to vote generally in the election of
directors. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Duties
and liability of directors |
|
General
duties imposed by the Corporations Act on directors and officers of companies include duties
to exercise duties and powers with due care and diligence, in good faith and for a proper
purpose, and not to improperly use their position or information obtained through their position
to gain advantage or cause detriment to the company.
Under
the Corporations Act, there is a general prohibition on a company or a related body corporate
exempting officers from any liability incurred as an officer of the company. |
|
Under
Delaware law, the directors of a company incorporated in Delaware have fiduciary obligations, including the duty of care and the
duty of loyalty. The duty of care requires directors to act in good faith, with the care that a reasonable person in a
similar position and circumstances would exercise and in a manner the director reasonably believes to be in the best interests of
the company and its stockholders. Directors must inform themselves of all reasonably available material information before making
business decisions on behalf of the company and to act with requisite care in discharging their duties to the company. The
duty of loyalty requires directors to act in good faith and in the company’s best interests. Under the DGCL, a company
incorporated in Delaware may include in its certificate of incorporation a provision eliminating the personal liability of a
director or officer to the company or its stockholders for monetary damages for a breach of fiduciary duty as a director or
officer. However, the provision may not eliminate liability for: |
| |
|
|
|
● |
breach
of the director’s or officer’s duty of loyalty; |
| |
|
|
|
|
|
| |
|
|
|
● |
acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; |
| |
|
|
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| |
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|
● |
directors
for unlawful payment of dividends; |
| |
|
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|
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| |
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|
● |
directors
for unlawful purchases or redemptions of shares; |
| |
|
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| |
|
|
|
● |
any
transaction from which the director or officer derived an improper personal benefit; or |
| |
|
|
|
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|
| |
|
|
|
● |
an
officer in any action by or in the right of the corporation. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Bringing
or intervening in legal proceedings on behalf of the entity |
|
A
member, former member or person entitled to be a member of a company, or an officer or former
officer of a company, may bring proceedings on behalf of a company and in the company’s
name where the company is unwilling or unable to do so.
Proceedings
may only be brought if leave is granted by a Court, including Federal Court, the Supreme Court of a State or Territory of Australia,
or Federal Circuit and Family Court of Australia, for the person to bring or intervene in proceedings.
Leave
will generally be granted if the court is satisfied that:
●
it is probable that the company itself will not bring the proceedings or properly take responsibility for them;
●
the applicant is acting in good faith;
●
it is in the best interests of the company that the applicant be granted leave;
●
if the application relates to leave to bring proceedings, there is a serious question to be tried;
●
either at least 14 days before making the application, the applicant gave written notice of the application to the company, or it
is appropriate to grant leave even though the notice period was not provided. |
|
The
DGCL permits a stockholder to bring a derivative action on behalf of a company if those in
control of the company have failed to assert a claim belonging to the relevant company.
Derivative
actions have certain standing and eligibility requirements, including that the plaintiff in the action must generally have been a
stockholder of the company at the time that the act complained of occurred and must maintain his or her status as a stockholder of
the company throughout the course of the litigation. Derivative plaintiffs must have previously made a demand on the directors of
the company to assert the corporate claim, unless such a demand would have been futile. |
| |
|
|
|
|
| Continuous
disclosure |
|
The
Corporations Act contains provisions which require a listed company to comply with the relevant
disclosure rules of their financial market, in summary being such information concerning
the company that a reasonable person would expect to have a material effect on the price
or the value of the company’s shares.
There
are also periodic reporting and disclosure rules that apply, requiring it (among other things) to report to ASIC at the end of every
half year and annually in respect of its financial statements and reports. |
|
US
reporting companies are subject to US federal securities laws and regulations in relation
to its ongoing disclosure obligations.
Once
listed on a national securities exchange, the US company will also be subject to the ongoing disclosure obligations of such exchange.
The
NYSE listing rules and US federal securities laws and regulations generally require disclosure to the public of any material information
that would reasonably be expected to affect the value of a company’s shares or influence investors’ decisions. This includes: |
| |
|
|
|
● |
annual
reports on Form 10-K; |
| |
|
|
|
|
|
| |
|
|
|
● |
quarterly
reports on Form 10-Q; |
| |
|
|
|
|
|
| |
|
|
|
● |
current
reports containing material information required to be disclosed on Form 8-K; |
| |
|
|
|
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|
| |
|
|
|
● |
company
insider reports; and |
| |
|
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|
|
|
| |
|
|
|
● |
proxy
statement. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Inspection
of Books and Records |
|
Inspection
of our records is governed by the Corporations Act. Any member of the public has the right to inspect or obtain copies of our registers,
and the Company may charge a fee not exceeding the prescribed fee set by regulation. Shareholders are not required to pay a fee for
inspection of our registers or minute books of the meetings of shareholders. Other corporate records, including minutes of directors’
meetings, financial records and other documents, are not open for inspection by the public or shareholders. Where a shareholder is
acting in good faith and an inspection is deemed to be made for a proper purpose, a shareholder may apply to the court to make an
order for inspection of our books. |
|
All
shareholders of a Delaware corporation have the right, upon written demand, to inspect or obtain copies of the corporation’s
shares ledger and its other books and records for any purpose reasonably related to such person’s interest as a shareholder |
| |
|
|
|
|
| Insider
trading |
|
The
Corporations Act prohibits any person who:
●
possesses information that is not generally available, but if it were generally available, a reasonable person would expect it to
have a material effect on the price or value of company’s securities (Inside Information); and
●
knew, or ought reasonably to have known, that the information was Inside Information,
from
applying for, buying or selling those securities (or entering an agreement to do so) or procuring others to do so. The prohibition
also extends to the communication of the information (or causing the information to be communicated) directly or indirectly to third
parties if the person knew, or ought reasonably to have known, that the recipient would or would be likely to apply for, buy or sell
the securities (or enter an agreement to do so), or procure others to do so.
This
prohibition is subject to certain limited exceptions. |
|
US
federal securities laws generally prohibit any person who possesses material non-public information relating to a company incorporated
in the US or its securities from buying or selling those securities or procuring others to do so, or from communicating the material
non-public information to third parties. |
| Matter |
|
Australian
public company |
|
Listed
US company incorporated in Delaware |
| Winding
up |
|
The
members of a solvent company may determine to wind-up the company under the Corporations
Act. A special resolution is required.
From
the passing of the resolution, the company must cease to carry on its business except so far as the liquidator considers is required
for the beneficial disposal or winding up of that business, but the corporate state and corporate powers of the company continue
until it is deregistered.
Our
Constitution states that if MMA is wound up, if the assets available for distribution among the shareholders are insufficient to
repay the whole of the paid up capital, the assets must be distributed so that, as nearly as may be, the losses are borne by the
shareholders in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up, on
the Shares held by them respectively, alternatively, if the assets available for distribution among the shareholders are more than
sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess must be distributed among
the shareholders in proportion to the capital at the commencement of the winding up paid up, or which ought to have been paid up,
on the Shares held by them respectively.
Further,
a liquidator may, with the sanction of a special resolution, divide the assets of MMA among the shareholders in kind. The liquidator
cannot compel any member to accept marketable securities in respect of which there is a liability as part of a distribution of assets
of MMA.
The
Corporations Act also provides that subject to provisions as to preferential payments, the property of a company must, on its winding
up, be applied in satisfaction of its liabilities equally and, subject to that application, must, unless the company’s constitution
otherwise provides, be distributed among the members according to their rights and interests in the company. |
|
The
DGCL permits the board of directors to authorize the dissolution of a company incorporated
in Delaware if:
●
a majority of the directors in office adopt a resolution to approve dissolution at a board meeting called for that purpose;
●
holders of a majority of the issued and outstanding shares entitled to vote on the matter adopt a resolution to approve dissolution
at a stockholders’ meeting called for that purpose; and
●
a certificate of dissolution is filed with the Delaware Secretary of State.
The
DGCL also permits stockholders to authorize the dissolution of a company incorporated in Delaware without board action if:
●
all of the stockholders entitled to vote on the matter provide written consent to dissolution; and
●
a certificate of dissolution is filed with the Delaware Secretary of State. |
Listing
Our
ordinary shares are listed on the NYSE American under the symbol “MMA”.
Transfer
Agent and Registrar
The
transfer agent and registrar for our ordinary shares and Series A Preferred Shares is VStock Transfer, LLC. The address for VStock Transfer,
LLC is 18 Lafayette Place, Woodmere, New York 11598.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of
any debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms
set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We
may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We
will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior
indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee
to be named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which
this prospectus is a part. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture,
as applicable. The indentures will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We
use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated
indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each
indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign
currencies or units based on or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be issued
thereunder, and each indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined
pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We
will describe in each prospectus supplement the following terms relating to a series of debt securities:
| |
● |
title
or designation; |
| |
|
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| |
● |
the
aggregate principal amount and any limit on the amount that may be issued; |
| |
|
|
| |
● |
the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
| |
|
|
| |
● |
whether
we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be; |
| |
|
|
| |
● |
the
maturity date and the date or dates on which principal will be payable; |
| |
|
|
| |
● |
the
interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates;
|
| |
|
|
| |
● |
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| |
|
|
| |
● |
the
terms of the subordination of any series of subordinated debt; |
| |
|
|
| |
● |
the
place or places where payments will be payable; |
| |
|
|
| |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
redemption provisions; |
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the
date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt securities; |
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whether
the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; |
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whether
we will be restricted from incurring any additional indebtedness; |
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a
discussion of any material or special U.S. federal income tax considerations applicable to a series of debt securities; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their
maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and
other special considerations applicable to any of these debt securities in the applicable prospectus supplement. |
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable
for our ordinary shares or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the
option of the holder or at our option. We may include provisions pursuant to which the number of ordinary shares or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale; No Protection in Event of a Change of Control or Highly Leveraged Transaction
The
indentures do not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose
of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate.
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change of control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events
of Default Under the Indenture
The
following are events of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred;
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if
we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; |
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if
we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, other
than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues
for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur as to us. |
No
event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default
may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence
of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
If
an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee
or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in
writing to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series) of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree
for payment of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal
amount of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the
acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with
respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits
in respect of principal, premium or interest that had become due other than as a result of such acceleration). We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of
a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture
trustee, with respect to the debt securities of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will only have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies if:
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these
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities; |
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the
holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series;
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the
holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
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the
debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders
of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions
within 60 days after the notice, request and offer. |
We
will periodically file statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable
indenture.
Modification
of Indenture; Waiver
The
debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and |
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant
to such indenture. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of the series of debt securities; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption
of any debt securities; |
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reducing
the principal amount of discount securities payable upon acceleration of maturity; |
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making
the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment or waiver. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf
of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series or in
respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security
of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for obligations to:
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the
transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations
sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments
are due.
Form,
Exchange, and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange or in the applicable indenture, we will make no service charge for any registration of transfer or
exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes
to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture,
the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given
it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the
costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay the principal of and any premium and interest due on the debt securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments
by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust
office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each
series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities
which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to
us, and the holder of the security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act is applicable.
Subordination
of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment
to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the
amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
General
We
may issue warrants to purchase our ordinary shares and/or debt securities in one or more series together with other securities or separately,
as described in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants
that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating
to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants; |
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the
currency or currency units in which the offering price, if any, and the exercise price payable; |
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants; |
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if
applicable, the exercise price for our ordinary shares and the number of ordinary shares to be received upon exercise; |
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if
applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description
of that series of debt securities; |
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
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any
applicable material U.S. federal income tax consequences and any applicable material Australian tax consequences; |
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if
applicable, the date from and after which the warrants and the ordinary shares and/or debt securities will be separately transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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information
with respect to book-entry procedures, if any; |
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the
anti-dilution provisions of the warrants, if any; |
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any
redemption or call provisions, if any; |
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whether
the warrants may be sold separately or with other securities as parts of units; and |
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our shareholders to purchase our ordinary shares or the other securities described in this prospectus. We may offer
rights separately or together with one or more additional rights, debt securities, ordinary shares, or warrants, or any combination of
those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under
a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely
as our agent in connection with the certificates relating to the rights of the series of certificates 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 following description
sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of
the rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights
so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement
or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below
will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights
certificate for additional information before you decide whether to purchase any of our rights. We will provide in a prospectus supplement
the following terms of the rights being issued:
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the
date of determining the shareholders entitled to the rights distribution; |
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the
aggregate number of ordinary shares or other securities purchasable upon exercise of the rights; |
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the
exercise price; |
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the
aggregate number of rights issued; |
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whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
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the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire;
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the
method by which holders of rights will be entitled to exercise; |
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the
conditions to the completion of the offering, if any; |
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the
withdrawal, termination and cancellation rights, if any; |
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whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
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whether
shareholders are entitled to oversubscription rights, if any; |
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any
applicable material U.S. federal income tax considerations and any applicable material Australian tax considerations; and |
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the
rights, as applicable. |
Each
right will entitle the holder of rights to purchase for cash the principal amount of ordinary shares or other securities at the exercise
price provided 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.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the ordinary shares or other securities, as applicable, purchasable upon exercise of the rights.
If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons
other than shareholders, 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.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms
described below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus
supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses
and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. Each
unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each security included in the unit. 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.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
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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 of the governing unit agreement that differ from those described below; and |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Share Capital,” “Description of Debt Securities,” “Description of Warrants,” and “Description
of Rights” will apply to each unit, as applicable, and to any ordinary shares, debt security, warrant or right included in each
unit, as applicable.
Unit
Agent
The
name and address of the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as a unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
EXPENSES
The
following is an estimate of the expenses (all of which are to be paid by us) that we may incur in connection with the securities being
registered hereby.
| SEC registration fee | |
$ | 6,905.00 | |
| FINRA filing fee | |
| 7,625.00 | |
| Legal fees and expenses | |
| | (1) |
| Accounting fees and expenses | |
| | (1) |
| Printing expenses | |
| | (1) |
| Miscellaneous expenses | |
| | (1) |
| Total | |
$ | | (1) |
| (1) |
These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
|
LEGAL
MATTERS
Unless
the applicable prospectus supplement indicates otherwise, the validity of the debt securities, warrants and units governed by U.S. law
and certain other matters of U.S. law will be passed upon for us by Sheppard, Mullin, Richter & Hampton LLP. Unless the applicable
prospectus supplement indicates otherwise, the validity of our ordinary shares and certain matters governed by Australia law will be
passed on for us by QR Lawyers, Melbourne, Australia. Additional legal matters may be passed upon for any underwriters, dealers or agents
by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of Mixed Martial Arts Group Limited (the Company) as of June 30, 2025 and 2024 and for each of the
three years in the period ended June 30, 2025 incorporated by reference in this Prospectus and in the Registration Statement have been
so incorporated in reliance on the report of BDO Audit Pty Ltd, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting. The report on the consolidated financial statements contains an explanatory paragraph
regarding the Company’s ability to continue as a going concern.
ENFORCEMENT
OF JUDGMENTS
We
are a corporation organized under the laws of Australia. More than half of our directors and executive officers are located and reside,
respectively, outside the United States. Because of the location of our assets and board members, it may not be possible for investors
to serve process within the United States upon us or those persons with respect to matters arising under the United States federal securities
laws or to enforce against us or persons located outside the United States judgments of United States courts asserted under the civil
liability provisions of the United States federal securities laws. We understand that there is doubt as to the enforceability in Australia,
in original actions or in actions for enforcement of judgments of United States courts, of civil liabilities predicated solely upon the
federal securities laws of the United States insofar as they are fines or penalties. In addition, awards of punitive damages in actions
brought in the United States or elsewhere may be unenforceable in Australia by reason of being a penalty. Wimp 2 Warrior LLC, a Delaware
limited liability company, with a registered office at 8 The Green, Ste R, Dover, DE 19901, has been appointed agent to receive service
of process in any action against us in any state or federal court in the State of New York.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the periodic reporting and other informational requirements of the Exchange Act. Under the Exchange Act, we file Annual
Reports and other information with the SEC. As a foreign private issuer, we are exempt from, among other things, the rules under the
Exchange Act prescribing the furnishing and content of proxy statements and our officers, directors and principal shareholders are exempt
from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act.
The
SEC maintains a web site that contains reports and information statements and other information about issuers, such as us, who file electronically
with the SEC. The address of that website is www.sec.gov.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the
information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms
of the documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement of which
this prospectus forms a part. Statements in this prospectus or any prospectus supplement about these documents are summaries and each
statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for
a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website,
as provided above.
We
maintain a corporate website at https://www.mma.inc. Information contained on, or that can be accessed through, our website does
not constitute a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
We will post on our website any materials required to be so posted on such website under applicable corporate or securities laws and
regulations, including, posting any XBRL interactive financial data required to be filed with the SEC and any notices of general meetings
of our shareholders.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We filed
a registration statement on Form F-3 under the Securities Act with the SEC with respect to the securities we may offer pursuant to this
prospectus. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer
to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this
prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in,
the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. Copies of
all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon
payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The documents
we are incorporating by reference are:
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our
Annual Report on Form 20-F for the year ended June 30, 2025, filed with the SEC on October 31, 2025; |
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our
Reports of Foreign Private Issuer on Form 6-K filed with the SEC on July 10, 2025, July 15, 2025, July 17, 2025, July 25, 2025, August 6, 2025, August 27, 2025, September 9, 2025, October 7, 2025, October 20, 2025, October 29, 2025, December 5, 2025, December 29, 2025, December 30, 2025, and January 2, 2026 and |
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the
description of our ordinary shares contained in our Registration Statement on Form 8-A filed with the SEC on March 13, 2024, and
as attached in Exhibit 2.1 to our Annual Report on Form 20-F filed with the SEC on October 31, 2024. |
We
also incorporate by reference all subsequent Annual Reports on Form 20-F that we file with the SEC and certain reports on Form 6-K that
we furnish to the SEC after the date of this prospectus (if they state that they are incorporated by reference into this prospectus)
prior to the termination of this offering. In all cases, you should rely on the later information over different information included
in this prospectus or any accompanying prospectus supplement.
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 documents
unless such exhibits are specifically 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:
Mixed
Martial Arts Group Limited
Level
1, Suite 1, 29-33 The Corso
Manly,
New South Wales 2095
Australia
+61 1800
151 865
We
maintain an internet site at https://www.mma.inc. Our website and the information contained on or connected to it shall
not be deemed to be incorporated into this prospectus or the registration statement of which it forms a part.
You
should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide
you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making
offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JANUARY 16, 2026
PROSPECTUS
Up
to 4,628,570 Ordinary Shares
This
prospectus relates to the resale, from time to time of up to (i) 4,285,713 ordinary shares, no par value per share (the “Ordinary
Shares”), of Mixed Martial Arts Group Limited, an Australian public company limited by shares (the “Company”), which
are issuable upon the conversion of Series A Preferred Shares (the “Series A Preferred Shares”) issued by the Company to
certain accredited investors in a private placement offering on December 31, 2025, and (ii) 342,857 Ordinary Shares which are issuable
upon the exercise of warrants (the “Warrants”) to purchase Ordinary Shares which Warrants were issued by the Company to Dominari
Securities LLC (“Dominari” and collectively with the investors in the private placement offering, the “Selling Stockholders”)
in connection with the private placement offering. We are not selling any securities under this prospectus and will not receive any proceeds
from the sale of Ordinary Shares by the Selling Stockholders. However, we may receive up to approximately $240,000 upon the exercise
of the Warrants if the Warrants are exercised for cash. The Selling Stockholders may sell or otherwise dispose of the Ordinary Shares
being offered by the Selling Stockholders pursuant to this prospectus in different ways and at varying prices. The resale of the Ordinary
Shares, or the perception that these sales could occur, could result in a decline in the public trading price of our Ordinary Shares.
We provide more information about how the Selling Stockholders may sell or otherwise dispose of the Ordinary Shares in the section entitled
“Plan of Distribution.” We will bear all costs, expenses, and fees in connection with the registration of the Ordinary Shares
offered hereby. The Selling Stockholders will bear all commissions and discounts, if any, attributable to their sales of the Ordinary
Shares offered hereby. See the section of this prospectus entitled “Selling Stockholders” for additional information regarding
the Selling Stockholders and the Warrants.
Our
Ordinary Shares are listed on the NYSE American under the symbol “MMA”. On January 14, 2026, the closing price as reported
on the NYSE American was $1.05 per share.
We
are an “emerging growth company” and “smaller reporting company” under the federal securities laws and, as such,
are subject to reduced public company reporting requirements.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 7 of this prospectus under the caption “Risk Factors” We may also
include specific risk factors in supplements to this prospectus under the caption “Risk Related to This Offering.” This
prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2026
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”). The
Selling Stockholders named in this prospectus may from time to time sell the securities described in this prospectus. We may provide
a prospectus supplement or post-effective amendment to the registration statement of which this prospectus forms a part to add information
to, or update or change information contained in, this prospectus. Any statement contained in this prospectus or incorporated by reference
herein will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in such prospectus
supplement or post-effective amendment modifies or supersedes such statement. Any statement so modified will be deemed to constitute
a part of this prospectus only as so modified, and any statement so superseded will be deemed not to constitute a part of this prospectus.
You should read both this prospectus, including any documents incorporated by reference, and any applicable prospectus supplement or
post-effective amendment to the registration statement of which this prospectus forms a part together with the additional information
to which we refer you in the section of this prospectus titled “Where You Can Find More Information.”
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed, or will be incorporated by reference as exhibits to the registration
statement of which this prospectus forms a part, and you may obtain copies of those documents as described below under “Where You
Can Find More Information.”
We
further note that the representations, warranties, and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or
covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such
representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Neither
we nor the Selling Stockholders have authorized anyone to provide you with information that is different from that contained, or incorporated
by reference, in this prospectus, any applicable prospectus supplement or in any related free writing prospectus. We take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus and any applicable
prospectus supplement or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy
any securities other than the securities described herein or therein or an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in
this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus is accurate
only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially
since those dates.
The
Selling Stockholders are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are
permitted. For investors outside the United States: Neither we, nor the Selling Stockholders have done anything that would permit this
offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in
the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe
any restrictions relating to, the offering of securities and the distribution of this prospectus outside the United States.
The
MMA design logo and the MMA mark appearing in this prospectus are the property of the Company. Trade names, trademarks and service marks
of other companies appearing in this prospectus are the property of their respective holders. We have omitted the ® and TM designations,
as applicable, for the trademarks used in this prospectus.
Throughout
this prospectus, the terms “MMA,” “we,” “us,” “our” and the “Company” refer
to Mixed Martial Arts Group Limited and its consolidated subsidiaries.
CAUTIONARY
STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the information incorporated by reference herein contain certain statements that constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The words “believe,” “may,” “will,” “estimate,” “continue,”
“anticipate,” “intend,” “expect,” “could,” “would,” “project,”
“plan,” “potentially,” “likely,” and similar expressions and variations thereof are intended to identify
forward-looking statements but are not the exclusive means of identifying such statements. Those statements appear in this prospectus
and the information incorporated by reference herein, particularly in the sections titled “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” and include statements regarding the intent, belief
or current expectations of our management that are subject to known and unknown risks, uncertainties and assumptions. You are cautioned
that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual
results may differ materially from those projected in the forward-looking statements as a result of various factors.
Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified, you should
not rely upon forward-looking statements as predictions of future events. The events and circumstances reflected in the forward-looking
statements may not be achieved or occur and actual results could differ materially from those projected in the forward-looking statements.
Except as required by applicable law, including the securities laws of the United States and the rules and regulations of the SEC, we
do not plan to publicly update or revise any forward-looking statements contained herein after we distribute this prospectus, whether
as a result of any new information, future events or otherwise.
In
addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the date of this prospectus, and although we believe such information forms
a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate
that we have conducted a thorough inquiry into, or review of, all potentially available relevant information. These statements are inherently
uncertain and investors are cautioned not to unduly rely upon these statements.
This
prospectus and the information incorporated by reference herein may contain market data that we obtain from industry sources. These sources
do not guarantee the accuracy or completeness of the information. Although we believe that our industry sources are reliable, we do not
independently verify the information. The market data may include projections that are based on a number of other projections. While
we believe these assumptions to be reasonable as of the date of this prospectus, actual results may differ from the projections.
PROSPECTUS
SUMMARY
This
summary provides a brief overview of information contained elsewhere in this prospectus and is qualified in its entirety by the more
detailed information included elsewhere in this prospectus. Because it is abbreviated, this summary does not contain all of the information
that you should consider before investing in our securities. You should read the entire prospectus carefully before making an investment
decision.
Overview
MMA.INC
is building the digital infrastructure for the future of combat sports. The big idea is simple: take the world’s fastest-growing
sports vertical and give it the connective tissue it’s never had. Our mission is to convert an estimated 700 million global fans
of mixed martial arts into active participants at scale.
We
believe the next decade will see martial arts rise from a fragmented industry to a consolidated mainstream. We are positioning MMA.INC
to make that transition possible. The recently announced media rights deal between the UFC and Paramount/CBS beginning in 2026 was another
significant step forward for the industry, and we expect to see significant visibility and engagement spikes for the sport.
MMA,
as a fragmented, very fast-growing sport, will benefit from a consolidated platform that serves everyone in the ecosystem, whether it
be the fan, fighter, coach or gym owner. The sport has never had more global visibility, yet the infrastructure to convert that interest
into participation just hasn’t existed. Hundreds of millions of fans watch fights, follow fighters, and engage with the culture,
but there is no streamlined path to get them into gyms to train. We are seeking to bridge that gap.
The
MMA fan base and addressable market, with hundreds of thousands of martial arts academies globally and a fan base measured in the hundreds
of millions. Our strategy is to partner with gyms, not own them. Our platform aims to be a technology tool that helps owner-operators
acquire, onboard, and retain customers without heavy capex. We connect MMA fans to training programs and gyms, make onboarding seamless
for gyms, and monetize through subscriptions and an expanding stack of services.
Together,
BJJLink and our renowned “Warrior Training Program” connect MMA fans’ energy and the gyms, coaches, and communities
providing pathways to lifelong participation. We aim to solve two problems at once: making it easier for fans to take their first step
into training, and giving academies new members and the tools to run more efficiently, retain customers, and grow revenue. That combination
is powerful because it aligns everyone’s interests: fans get access, gyms get customers, and the sport gets stronger.
Our
platform is built to capture sector growth by leveraging existing “owner-operator” gyms and coaching relationships without
the overhead or slow onboarding. Each new academy we onboard and each new fan starting our program increases our network effect and extends
our first-mover advantage.
Our
ordinary shares are listed on the NYSE American under the symbol “MMA.”
Strategic
Advisors and Partners
We
have strong support from key investors and strategic advisors, including:
Donald
Trump Jr. is a business executive, media figure, and co-founder of World Liberty Financial. His appointment as our Strategic
Advisor adds global recognition and brand-building expertise and will provide strategic counsel to our board and management team.
Conor
McGregor is our investor, Strategic Advisor and a passionate advocate for what we’re building at MMA.INC. His global reach,
exceptional marketing instincts, and ability to command attention augment our business, providing us with access to more partners, sponsors
and media coverage.
We
have also partnered with one of the largest names in MMA inspired fitness, UFC GYM. In September 2024, we entered into a multi-year strategic
partnership aimed at launching branded programs, amateur fight events, and training platforms across more than 150 UFC Gym locations
worldwide. Further, UFC GYM selected BJJLink as the operating platform for its new Brazilian jiu-jitsu franchise expansion, with forty-five
new academies are due to open in 2026.
Our
Advisory Board described above work with our executive team, which includes industry leaders like John Kavanagh and Rich Chou, to give
us a powerful edge in networking, distribution, brand trust, and the ability to identify and attract incredible growth opportunities,
like our partnership with UFC Gym.
Market
Opportunity
With
700 million combat sports fans worldwide, mixed martial arts has reached unprecedented popularity. We benefit from the sector’s
growth, driven by major MMA leagues like UFC, PFL, ONE Championship, and Bellator, whose marketing efforts expand the sport’s fan
base.
Our
goal is to convert this interest into engagement through our premium online and in-gym training experiences. According to IBISWorld statistics,
there are currently over 46,500 martial arts and combat sports gyms in the US alone that generated annual revenues of approximately $19.4
billion in 2024. Additionally, according to Sports & Fitness Industry Association’s Single Sport Reports for Martial Arts and
Boxing Fitness, it is estimated that more than 11.8 million people engaged in various martial arts and combat sports disciplines in 2023.
Our
business model complements existing industry players without cannibalizing their market. As the Company scales, its first-mover advantage
in grassroots MMA participation unlocks significant potential, especially in North America, where the martial arts industry is projected
to reach 67,000 gyms by the end of 2025, with fanbase growth accelerating exponentially.
Our
Products and Platform
Our
business is subscription-driven. Customers join our ecosystem to train in the gym or online with top-tier coaches. Price points range
from entry-level digital access to premium, immersive, five-day-a-week training programs. The wide spectrum of offerings lets us meet
people where they currently are - budget, schedule, and ambition - and then allow them to increase their commitments as their engagement
deepens.
For
gym operators, the economics improve as adoption grows. Software adoption allows for strong retention, margins grow as usage of digital
tools rises, and our customer acquisition cost remains attractive because content and community engagement convert fans into customers
more efficiently than advertising does. With distribution scale from branded partnerships like UFC GYM, we anticipate that revenue will
become increasingly more recurring and predictable, while also enabling us to introduce additional monetization channels, including e-commerce,
athlete management tools, and advanced fan engagement features, within the same user base.
Our
products cater to a wide range of users, from gym owners and coaches to fans and participants, with B2C subscription prices ranging from
US$9 to US$550 per month and B2B subscriptions ranging from US$49 to US$149 per month plus transaction fees on transactions processed
through our platform, enhancing revenue streams through a combination of subscriptions, transactions fees, and partnership opportunities.
We
expect to launch our Community and Commerce Platform in 2026, a mobile-first, multi-device app designed to unify the global martial arts
community into a single, monetized ecosystem. This platform will offer fans, participants, coaches, and gym owners a seamless experience
to connect, engage, and transact within the sport. This platform is aimed to appeal to the 700 million MMA fan base and ultimately provide
both a free and premium subscription to access the platform.
As
we prepare to release our tokenised rewards and loyalty Community and Fan platform in 2026, our goal is to enable the community to “get
paid to train”, whereby they can earn experience points (“XP”) and cryptocurrency rewards for training and engagement
that could be used both on the platform and within our verified partner network.
Our
Next Growth Engines
Our
future growth strategy is driven by clear principles that focus on building an integrated ecosystem to empower coaches, engage participants,
and drive sustainable revenue. We aim to surpass current industry leaders by creating a global platform that connects the entire martial
arts community.
Our
platform is designed to fuel revenue growth by combining B2C and B2B subscriptions with transaction fees for services and products offered
by gyms, coaches, and athlete influencers. As fans and participants engage with the platform, connecting with these offerings, we capture
additional value from every transaction, driving sustained growth across the entire ecosystem.
We
intend to continue to invest in technology to enhance the experience for all participants on the Company’s Community Platform,
namely customers, coaches and gym owners, in order to drive lifetime value and expand sales channels through referrals and organic promotion.
In
October 2025, we announced our development of our blockchain initiatives and a Web 3.0 ecosystem as part of our growth strategy. In October
2025, we also commenced deploying our utility token on the Solana testnet, our first step towards validating our Web 3.0 ecosystem that
fuses combat sports, blockchain and artificial intelligence. In addition, we are building a rewards platform to enhance community engagement
through tokenized rewards, enabling users to “Get Paid to Train.”. The testnet release enables MMA.INC to simulate full ecosystem
activity, including minting, staking, XP accumulation, and rewards distribution, while also introducing AI-powered analytics that assess
user performance, engagement, and progression. As part of the planned launch, it is expected that rewards and loyalty points will be
distributed to MMA.INC’s existing community of students, coaches, athletes and partner gyms who have already been contributing
to the ecosystem’s growth.
The MMA.INC
Utility Token is currently in development and not yet available for public sale, purchase or trading. MMA.INC strongly advises the public
to avoid any third-party tokens claiming to represent or be affiliated with the Company. Official information on token deployment
and platform launch will be communicated only through www.mma.inc/Token and verified Company channels.
Corporate
Information
We
were incorporated on March 27, 2013 under the laws of Australia under the name Wimp 2 Warrior Limited and changed our name to Alta Global
Group Limited on February 2, 2022, and to Mixed Martial Arts Group Limited on December 5, 2024.
Our
principal executive offices are located at Level 1, Suite 1, 29-33 The Corso, Manly, New South Wales 2095, and our telephone number there
is +61 1800 151 865. Our website address is https://www.mma.inc. The information contained on our website is not incorporated
by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website
as part of this prospectus or in deciding whether to purchase our securities.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.235 billion in revenues during our last fiscal year, we qualify as an emerging growth company as defined
in the Jumpstart Our Business Startups Act (“JOBS Act”) enacted in 2012. As an emerging growth company, we expect to take
advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not
limited to:
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● |
being
permitted to present only two years of audited financial statements, in addition to any required unaudited interim financial statements,
with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
disclosure in this prospectus; |
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|
|
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● |
not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley
Act”); |
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|
|
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● |
reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and |
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exemptions
from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
We
may take advantage of these provisions until the last day of our fiscal year following the fifth anniversary of the completion of our
initial public offering, or June 30, 2029. However, if certain events occur prior to the end of such five-year period, including if we
become a “large accelerated filer,” our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion of
non-convertible debt in any three-year period, we will cease to be an emerging growth company prior to the end of such five-year period.
The
JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised
accounting standards. As an emerging growth company, we intend to take advantage of an extended transition period for complying with
new or revised accounting standards as permitted by the JOBS Act. We have elected to take advantage of certain of the reduced disclosure
obligations in this prospectus and in the registration statement of which this prospectus is a part and may elect to take advantage of
other reduced reporting requirements in future filings. As a result, the information in this prospectus and that we provide to our shareholders
in the future may be different than what you might receive from other public reporting companies in which you hold equity interests.
Implications
of Being a Foreign Private Issuer
We
are a “foreign private issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities
Act”). In our capacity as a foreign private issuer, we are exempt from certain rules under the Exchange Act that impose certain
disclosure obligations and procedural requirements for proxy solicitations under Section 14 of the Exchange Act. In addition, our officers,
directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions of Section
16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases and sales of our Ordinary Shares. Moreover,
we are not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act. In addition, we are not required to comply with Regulation FD, which restricts the
selective disclosure of material information.
We
may take advantage of these exemptions until such time as we are no longer a foreign private issuer. We would cease to be a foreign private
issuer at such time as more than 50% of our outstanding voting securities are held by U.S. residents and any of the following three circumstances
applies: (1) the majority of our executive officers or directors are U.S. citizens or residents, (2) more than 50% of our assets are
located in the United States or (3) our business is administered principally in the United States.
As
a foreign private issuer, we have taken advantage of certain reduced disclosure and other requirements in this prospectus and may elect
to take advantage of other reduced reporting requirements in future filings. Accordingly, the information contained herein or that we
provide shareholders may be different than the information you receive from other public companies in which you hold equity securities.
THE
OFFERING
| Ordinary
Shares to be offered by the Selling Stockholders |
|
Up
to 4,628,570 Ordinary Shares, consisting of (i) 4,285,713 Ordinary Shares issuable upon the conversion of Series A Preferred Shares
and (ii) 342,857 Ordinary Shares issuable upon the exercise of Warrants at an exercise price of $0.70 per Ordinary Share. |
| |
|
|
| Terms
of the offering |
|
Each
Selling Stockholder will determine if, when and how it will dispose of any Ordinary Shares registered under this prospectus for resale. |
| |
|
|
| Ordinary
Shares outstanding prior to this offering |
|
26,483,541
Ordinary Shares. |
| |
|
|
| Ordinary
Shares to be outstanding after this offering |
|
31,112,111
Ordinary Shares, assuming the full exercise of the Series A Preferred Shares and the Warrants. The actual number of Ordinary
Shares outstanding after this offering will vary depending upon whether holders of the Series A Preferred Shares and Warrants elect
to convert or exercise such securities. |
| |
|
|
| Use
of proceeds |
|
We
will not receive any proceeds from the resale of Ordinary Shares offered by this prospectus
by the Selling Stockholders. However, we may receive up to approximately $240,000 from the
exercise of the Warrants if the Warrants are exercised for cash.
We
expect to use the net proceeds that we receive from the exercise of the Warrants, if any, for working capital and other general corporate
purposes. See “Use of Proceeds.” |
| |
|
|
| Risk
Factors |
|
See
“Risk Factors” beginning on page 7 of this prospectus, as well as other information included and incorporated by reference
in this prospectus, for a discussion of factors you should read and consider carefully before investing in our Ordinary Shares. |
| |
|
|
| NYSE
American Symbol |
|
MMA |
Unless
otherwise stated in this prospectus, the number of Ordinary Shares to be outstanding as of the date of this prospectus and after this
offering is based on 31,112,111 Ordinary Shares outstanding as of January 14, 2026, assumes the Series A Preferred Shares and Warrants
have been exercised in full, and excludes:
| |
● |
2,248,543
Ordinary Shares issuable upon the exercise of options outstanding as of the date of this prospectus at a weighted average exercise
price of $1.64; |
| |
|
|
| |
● |
365,000
Ordinary Shares issuable upon the exercise of warrants outstanding as of the date of this prospectus at an exercise price of $2.35; |
| |
|
|
| |
● |
770,111
Ordinary Shares issuable upon the exercise of options outstanding as of the date of this prospectus that were issued under the EIP; |
| |
|
|
| |
● |
2,331,025
Ordinary Shares issuable upon the vesting of Restricted Units outstanding as of the date of this prospectus that were issued under
the EIP; |
| |
|
|
| |
● |
2,094,874
Ordinary Shares issuable upon the vesting of performance share rights outstanding as of the date of this prospectus that were issued
under the EIP; and |
| |
|
|
| |
● |
550,000
Ordinary Shares issuable upon the vesting of performance share rights outstanding as of the date of this prospectus. |
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Our business, financial condition and results of operations could be materially and
adversely affected by any of these risks. If any of these risks occur, the value of the securities being offered in this prospectus may
decline and you may lose all or part of your investment. Before investing in our securities, you should consider carefully the risk factors
set forth in this prospectus, along with the risk factors described in “Part I. Item 3.D. Risk Factors” in our Annual Report
on Form 20-F for the fiscal year ended June 30, 2025 filed with the SEC on October 31, 2025 (the “Form 20-F”) and other filings
subsequently made by us with the SEC that are incorporated by reference into this prospectus.
Risks
Related to this Offering
Investors
who buy shares at different times will likely pay different prices.
The
Selling Stockholders may resell all or a portion of their shares at any time or from time to time in their discretion and at different
prices. As a result, investors who purchase shares from the Selling Stockholders at different times will likely pay different prices
for those shares, and so may experience different levels of dilution and in some cases substantial dilution and different outcomes in
their investment results.
Our
management will have broad discretion as to the use of the proceeds from the exercise of the Warrants and may not use the proceeds effectively.
Our
management will have broad discretion as to the application of the net proceeds from the exercise of the Warrants if the Warrants are
exercised for cash. Currently, we intend to use the net proceeds from the exercise of the Warrants, if any, for working capital and other
general corporate purposes. See “Use of Proceeds.” Purchasers will not have the opportunity, as part of their investment
decision, to assess whether these proceeds are being used appropriately. Our management may use the net proceeds for corporate purposes
that may not improve our financial condition or market value, which could cause the price of our securities to decline.
Other
Risks
We
do not expect to declare any dividends in the foreseeable future.
We
do not anticipate declaring any cash dividends to holders of our Ordinary Shares in the foreseeable future. Consequently, investors may
need to rely on sales of their shares after price appreciation, which may not occur for some time or not at all, as the only way to realize
any future gains on their investment.
There
is substantial doubt about our ability to continue as a “going concern”.
We
will require substantial additional funds to continue our operations. Our cash and cash equivalents were A$2,084,674 at June 30, 2025.
Given our recurring history of losses and an insufficient amount of cash available to fund our ongoing operations for the next year,
we have concluded that there is a substantial doubt regarding our ability to continue as a going concern for a period of at least 12
months beyond the filing of the Form 20-F. Any such inability to continue as a going concern may result in our stockholders losing their
entire investment. There is no guarantee that we will become profitable or secure additional financing on acceptable terms. Further,
the inclusion of disclosures expressing substantial doubt about our ability to continue as a going concern could materially adversely
affect our stock price and our ability to raise new capital or enter into partnerships or other agreements.
We
have prepared our condensed financial statements on a going concern basis, which contemplates the realization of assets and the satisfaction
of liabilities and commitments in the normal course of business. Our condensed financial statements included in the Form 20-F do not
include any adjustments to reflect the possible inability to continue as a going concern within at least 12 months after the issuance
of such financial statements.
DESCRIPTION
OF ORDINARY SHARES
The
description of our Ordinary Shares is incorporated by reference to Exhibit 2.1 to our Annual Report on Form 20-F for the fiscal year
ended June 30, 2024, filed with the SEC on October 31, 2024.
DIVIDEND
POLICY
We
have never declared or paid any cash dividends on our Ordinary Shares and do not anticipate paying any cash dividends on our Ordinary
Shares in the foreseeable future. Payment of cash dividends, if any, in the future will be at the discretion of our board of directors
and will depend on applicable law and then-existing conditions, including our financial condition, operating results, contractual restrictions,
capital requirements, business prospects and other factors our board of directors may deem relevant.
SELLING
STOCKHOLDERS
This
prospectus relates to the offer and sale by the Selling Stockholders of up to 4,628,570 Ordinary Shares that may be issued by us to the
Selling Stockholders upon conversion of the Series A Preferred Shares and exercise of the Warrants.
On
December 31, 2025, we issued 4,285,713 Series A Preferred Shares to certain accredited investors in a private placement offering of our
Series A Preferred Shares. The Series A Preferred Shares are convertible into 4,285,713 Series A Preferred Shares. In connection with
the private placement offering of the Series A Preferred Shares, we issued to Dominari the Warrants exercisable for an aggregate of up
to 342,857 Ordinary Shares at an exercise price of $0.70 per share, payable in cash or, under certain circumstances, pursuant to net
exercise. The exercise period of the Warrants commenced on December 31, 2025, the closing date of the private placement offering, and
the Warrants will be exercisable until December 31, 2030. The Warrants issued to Dominari contain customary piggyback registration
rights for a period of two years.
As
used in this prospectus, the term “Selling Stockholder” includes the pledgees, donees, transferees, assignees, successors,
designees, and others who later come to hold any of a Selling Stockholder’s interest in the Ordinary Shares other than through
a public sale.
The
table below presents information regarding the Selling Stockholders and the Ordinary Shares that may be resold by the Selling Stockholders
from time to time under this prospectus. This table is prepared based on information supplied to us by the Selling Stockholders, and
reflects holdings as of January 14, 2026. The number of shares in the column entitled “Maximum Number of Ordinary Shares to be
Offered” in the table below represents all of the Ordinary Shares being offered for resale by the Selling Stockholders under this
prospectus. The Selling Stockholders may sell some, all, or none of the Ordinary Shares being offered for resale in this offering. We
do not know how long the Selling Stockholders will hold the shares before selling them, and we are not aware of any existing arrangements
between the Selling Stockholders and any other stockholder, broker, dealer, underwriter, or agent relating to the sale or distribution
of the Ordinary Shares being offered for resale by this prospectus.
Beneficial
ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act and includes Ordinary Shares with
respect to which the Selling Stockholders have sole or shared voting and investment power. The percentage of Ordinary Shares beneficially
owned by the Selling Stockholders prior to the offering shown in the table below is based on an aggregate of 31,112,111 Ordinary Shares
outstanding on January 14, 2026, which assumes full conversion of the Series A Preferred Shares and exercise of the Warrants. The column
entitled “Ordinary Shares Beneficially Owned After the Offered Ordinary Shares Are Sold” in the table below assumes the resale
by the Selling Stockholders of all of the Ordinary Shares being offered for resale pursuant to this prospectus.
We
have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe,
based on the information furnished to us, that each Selling Stockholder has sole voting and investment power with respect to all Ordinary
Shares that it beneficially owns, subject to applicable community property laws. Except as otherwise described below, based on the information
provided to us by the Selling Stockholders, none of the Selling Stockholders is a broker-dealer or an affiliate of a broker-dealer.
| | |
Number of Ordinary Shares
Beneficially Owned | | |
Maximum Number of Ordinary Shares | | |
Ordinary Shares
Beneficially Owned After
the Offered Ordinary
Shares Are Sold | |
| Name of Selling Securityholder | |
Number | | |
Percent | | |
Being Offered | | |
Number | | |
Percent | |
| Donald Trump Jr. | |
| 142,857 | | |
| * | | |
| 142,857 | | |
| - | | |
| - | |
| American Ventures LLC, Series XXXIX MMA (1) | |
| 2,000,000 | | |
| 6.43 | % | |
| 2,000,000 | | |
| - | | |
| - | |
| Gilda Equities LLC (2) | |
| 857,143 | | |
| 2.76 | % | |
| 857,143 | | |
| - | | |
| - | |
| Pinz Capital Special Opportunities Fund, LP (3) | |
| 214,285 | | |
| * | | |
| 214,285 | | |
| - | | |
| - | |
| Hexstone Capital LLC (4) | |
| 714,285 | | |
| 2.30 | % | |
| 714,285 | | |
| - | | |
| - | |
| Intracoastal Capital LLC (5) | |
| 357,143 | | |
| 1.15 | % | |
| 357,143 | | |
| - | | |
| - | |
| Dominari Securities LLC | |
| 342,857 | | |
| 1.10 | % | |
| 342,857 | | |
| - | | |
| - | |
| |
* |
Less
than one percent. |
| |
|
|
| |
(1)
|
Pursuant
to the terms of a securities purchase agreement entered into in connection with the private placement offering, American Ventures
is restricted from converting any Series A Preferred Shares, when aggregated with all other Ordinary Shares then beneficially owned
by American Ventures and its affiliates (as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended,
and Rule 13d-3 thereunder), would result in American Ventures and its affiliates beneficially owning more than 4.99% of the then
total Ordinary Shares (which may be increased up to 9.99% of our Ordinary Shares), which are referred to as the “Beneficial
Ownership Limitation.” The reported number of Ordinary Shares beneficially owned disregards the Beneficial Ownership Limitation
for purposes of this table. Eric Newman is the manager of American Ventures LLC, Series XXXIX MMA and may be deemed to beneficially
own the securities held by it. The address of American Ventures LLC, Series XXXIX MMA is 110 Front Street, Suite 300, Jupiter FL
33477. |
| |
|
|
| |
(2)
|
Jeffrey
Murphy is the manager of Gilda Equities LLC and may be deemed to beneficially own the securities held by it. The address of Gilda
Equities LLC is 767 Fifth Avenue, 16th Floor, New York, NY 10153. |
| |
|
|
| |
(3)
|
Matthew
Pinz is the manager of Pinz Capital Special Opportunities Fund, LP and may be deemed to beneficially own the securities held by it.
The address of Pinz Capital Special Opportunities Fund, LP is 27 Hospital Road, George Town, Grand Cayman, KY1-9008m, Cayman Islands. |
| |
|
|
| |
(4) |
Brendan
O’Neil is the manager of Hexstone Capital LLC and may be deemed to beneficially own the securities held by it. The address
of Hexstone Capital LLC is 3053 Fillmore St., Suite 303, San Francisco, CA 94123. |
| |
|
|
| |
(5)
|
Keith
Goodman is the manager of Intracoastal Capital LLC and may be deemed to beneficially own the securities held by it. The address of
Intracoastal Capital LLC 2211A Lakeside Dr., Bannockburn, IL 60015. |
USE
OF PROCEEDS
This
prospectus relates to the Ordinary Shares that may be offered and sold from time to time by the Selling Stockholders. All of the Ordinary
Shares offered by any Selling Stockholders pursuant to this prospectus will be sold by such Selling Stockholder for its own account.
We will not receive any of the proceeds from these sales. However, we may receive up to approximately $240,000 from the exercise of the
Warrants if the Warrants are exercised for cash. There can be no assurance that the Warrants will be exercised in full for cash.
We
intend to use net proceeds from the exercise of the Warrants for working capital and other general corporate purposes. The expected use
of net proceeds of this offering represents our current intentions based on our present plans and business conditions. Investors are
cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of such proceeds. The amounts and timing of our actual expenditures will depend
upon numerous factors, including the amount of cash generated by our operations, the amount of competition and other operational factors.
We may find it necessary or advisable to use portions of the proceeds for other purposes.
PLAN
OF DISTRIBUTION
The
Ordinary Shares offered by this prospectus are being offered by the Selling Stockholders. The shares may be sold or distributed from
time to time by the Selling Stockholders directly to one or more purchasers or through brokers, dealers, or underwriters who may act
solely as agents at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices,
or at fixed prices, which may be changed. We will not receive any of the proceeds from the sale of the securities by the Selling Stockholders.
However, we may receive up to approximately $240,000 from the exercise of the Warrants if the Warrants are exercised in full for cash.
The
sale of the Ordinary Shares offered by this prospectus could be effected in one or more of the following methods:
| |
● |
ordinary
brokers’ transactions; |
| |
● |
transactions
involving cross or block trades; |
| |
● |
through
brokers, dealers, or underwriters who may act solely as agents; |
| |
● |
“at
the market” into an existing market for our Ordinary Shares; |
| |
● |
in
other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected through
agents; |
| |
● |
in
privately negotiated transactions; or |
| |
● |
any
combination of the foregoing. |
In
order to comply with the securities laws of certain states, if applicable, the shares may be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the shares may not be sold unless they have been registered or qualified for sale
in the state or an exemption from the state’s registration or qualification requirement is available and complied with.
Brokers,
dealers, underwriters, or agents participating in the distribution of the Ordinary Shares offered by this prospectus may receive compensation
in the form of commissions, discounts, or concessions from the purchasers, for whom the broker-dealers may act as agent, of the shares
sold by the Selling Stockholders through this prospectus. The compensation paid to any such particular broker-dealer by any such purchasers
of Ordinary Shares sold by the Selling Stockholders may be less than or in excess of customary commissions. Neither we nor the Selling
Stockholders can presently estimate the amount of compensation that any agent will receive from any purchasers of Ordinary Shares sold
by the Selling Stockholders.
We
know of no existing arrangements between the Selling Stockholders or any other stockholder, broker, dealer, underwriter, or agent relating
to the sale or distribution of the Ordinary Shares offered by this prospectus.
We
may from time to time file with the SEC one or more supplements to this prospectus or amendments to the registration statement of which
this prospectus forms a part to amend, supplement, or update information contained in this prospectus, including, if and when required
under the Securities Act, to disclose certain information relating to a particular sale of shares offered by this prospectus by the Selling
Stockholders, including with respect to any compensation paid or payable by the Selling Stockholders to any brokers, dealers, underwriters,
or agents that participate in the distribution of such shares by the Selling Stockholders, and any other related information required
to be disclosed under the Securities Act.
We
will pay the expenses incident to the registration under the Securities Act of the offer and sale of the Ordinary Shares covered by this
prospectus by the Selling Stockholders.
This
offering will terminate on the date that all Ordinary Shares offered by this prospectus have been sold by the Selling Stockholders.
LEGAL
MATTERS
The
validity of the Ordinary Shares being offered by this prospectus and other legal matters concerning this offering and the validity of
the securities offered by this prospectus, will be passed upon for us by QR Lawyers, Melbourne, Australia.
EXPERTS
The
consolidated financial statements of Mixed Martial Arts Group Limited (the Company) as of June 30, 2025 and 2024 and for each of the
three years in the period ended June 30, 2025 incorporated by reference in this Prospectus and in the Registration Statement have been
so incorporated in reliance on the report of BDO Audit Pty Ltd, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting. The report on the consolidated financial statements contains an explanatory paragraph
regarding the Company’s ability to continue as a going concern.
ENFORCEMENT
OF JUDGMENTS
We
are a corporation organized under the laws of Australia. More than half of our directors and executive officers are located and reside,
respectively, outside the United States. Because of the location of our assets and board members, it may not be possible for investors
to serve process within the United States upon us or those persons with respect to matters arising under the United States federal securities
laws or to enforce against us or persons located outside the United States judgments of United States courts asserted under the civil
liability provisions of the United States federal securities laws. We understand that there is doubt as to the enforceability in Australia,
in original actions or in actions for enforcement of judgments of United States courts, of civil liabilities predicated solely upon the
federal securities laws of the United States insofar as they are fines or penalties. In addition, awards of punitive damages in actions
brought in the United States or elsewhere may be unenforceable in Australia by reason of being a penalty. Wimp 2 Warrior LLC, a Delaware
limited liability company, with a registered office at 8 The Green, Ste R, Dover, DE 19901, has been appointed agent to receive service
of process in any action against us in any state or federal court in the State of New York.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the periodic reporting and other informational requirements of the Exchange Act. Under the Exchange Act, we file Annual
Reports and other information with the SEC. As a foreign private issuer, we are exempt from, among other things, the rules under the
Exchange Act prescribing the furnishing and content of proxy statements and our officers, directors and principal shareholders are exempt
from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act.
The
SEC maintains a web site that contains reports and information statements and other information about issuers, such as us, who file electronically
with the SEC. The address of that website is www.sec.gov.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the
information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms
of the documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement of which
this prospectus forms a part. Statements in this prospectus or any prospectus supplement about these documents are summaries and each
statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for
a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website,
as provided above.
We
maintain a corporate website at https://www.mma.inc. Information contained on, or that can be accessed through, our website does
not constitute a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
We will post on our website any materials required to be so posted on such website under applicable corporate or securities laws and
regulations, including, posting any XBRL interactive financial data required to be filed with the SEC and any notices of general meetings
of our shareholders.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We filed
a registration statement on Form F-3 under the Securities Act with the SEC with respect to the securities we may offer pursuant to this
prospectus. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer
to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this
prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in,
the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. The documents
we are incorporating by reference are:
| |
● |
our
Annual Report on Form 20-F for the year ended June 30, 2025, filed with the SEC on October 31, 2025; |
| |
|
|
| |
● |
our
Reports of Foreign Private Issuer on Form 6-K filed with the SEC on July 10, 2025, July 15, 2025, July 17, 2025, July 25, 2025, August 6, 2025, August 27, 2025, September 9, 2025, October 7, 2025, October 20, 2025, October 29, 2025, December 5, 2025, December 29, 2025, December 30, 2025, and January 2, 2026 and |
| |
|
|
| |
● |
the
description of our ordinary shares contained in our Registration Statement on Form 8-A filed with the SEC on March 13, 2024, and
as attached in Exhibit 2.1 to our Annual Report on Form 20-F filed with the SEC on October 31, 2024. |
We
also incorporate by reference all subsequent Annual Reports on Form 20-F that we file with the SEC and certain reports on Form 6-K that
we furnish to the SEC after the date of this prospectus (if they state that they are incorporated by reference into this prospectus)
prior to the termination of this offering. In all cases, you should rely on the later information over different information included
in this prospectus or any accompanying prospectus supplement.
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 documents
unless such exhibits are specifically 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:
Mixed
Martial Arts Group Limited
Level
1, Suite 1, 29-33 The Corso
Manly,
New South Wales 2095
Australia
+61
1800 151 865
We
maintain an internet site at https://www.mma.inc. Our website and the information contained on or connected to it shall
not be deemed to be incorporated into this prospectus or the registration statement of which it forms a part.
You
should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide
you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making
offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 8.
Indemnification of Directors and Officers.
Australian
law. Australian law provides that a company or a related body corporate of the company may provide for indemnification of officers
and directors, except to the extent of any of the following liabilities incurred as an officer or director of the company:
| |
● |
a
liability owed to the company or a related body corporate of the company; |
| |
|
|
| |
● |
a
liability for a pecuniary penalty order made under section 1317G or a compensation order under section 961M, 1317H, 1317HA, 1317HB
1317HC or 1317HE of the Corporations Act; |
| |
|
|
| |
● |
a
liability that is owed to someone other than the company or a related body corporate of the company and did not arise out of conduct
in good faith; or |
| |
|
|
| |
● |
legal
costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred: |
| |
○ |
in
defending or resisting proceedings in which the person is found to have a liability for which they cannot be indemnified as set out
above; |
| |
|
|
| |
○ |
in
defending or resisting criminal proceedings in which the person is found guilty; |
| |
|
|
| |
○ |
in
defending or resisting proceedings brought by the Australian Securities & Investments Commission or a liquidator for a court
order if the grounds for making the order are found by the court to have been established (except costs incurred in responding to
actions taken by the Australian Securities & Investments Commission or a liquidator as part of an investigation before commencing
proceedings for a court order); or |
| |
|
|
| |
○ |
in
connection with proceedings for relief to the person under the Corporations Act in which the court denies the relief. |
Constitution. Our
Constitution provides, that to the extent permitted by law, the Company indemnifies every director, executive officer or company secretary
of the Company against a liability to another person, other than the Company or a related body corporate of the Company, provided that
the provisions of the Corporations Act are complied with in relation to the giving of the indemnity and the liability does not arise
in respect of conduct involving a lack of good faith on the part of the officer.
Indemnification
Agreements. Pursuant to our form of deed of access, insurance and indemnity which is filed as Exhibit 10.4 to this registration
statement, we have agreed to indemnify our directors. MMA has agreed to indemnify each of its directors to the extent permitted by law
against all liabilities incurred while holding office, including indemnifying directors for any legal expenses incurred in defending
proceedings relating to their directorship of MMA. Any indemnified amounts must be repaid to MMA to the extent that a director is reimbursed
from an insurance policy maintained by MMA for the directors. MMA has also agreed to obtain and pay the premiums for insurance policies
for each of its directors, which include run-off cover for each director for a period of seven years after they cease to hold office.
SEC
Position. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or
persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 9.
Exhibits.
(a)
Exhibits
| * |
To
be filed, if applicable, by amendment or as an exhibit to a Form 6-K and incorporated herein by reference. |
| ** |
To
be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939 |
| *** |
Filed
herewith |
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, as amended, or the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering price set forth in Exhibit 107 of the effective
registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the
registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, 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)
That, for the purpose of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective
(4)
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.
(5)
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 need not be furnished, provided, that the registrant includes in the prospectus, by means of a
post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that
all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing,
with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Securities Act, or 3-19 of Regulation S-X if such financial statements and information
are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference in the Form F-3.
(6)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act 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.
(7)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of 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 prepared by or on behalf of the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(8)
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s Annual Report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s Annual Report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
(9)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(10)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2)
of the Trust Indenture Act.
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 Manly, New South Wales, on the on January 16, 2026.
| |
MIXED MARTIAL ARTS GROUP LIMITED |
| |
|
|
| |
By: |
/s/
Nick Langton |
| |
Name: |
Nick
Langton |
| |
Title: |
Founder
and Chief Executive Officer |
| |
|
(Principal
Executive Officer) |
| |
|
|
| |
By: |
/s/
Aaron Links |
| |
Name: |
Aaron
Links |
| |
Title: |
Chief
Financial Officer |
| |
|
(Principal
Financial Officer and Principal Accounting Officer) |
POWER
OF ATTORNEY
Each
person whose signature appears below does hereby constitute and appoint Nick Langton as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for them and in their name, place and stead, in any and all capacities, in connection
with this registration statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the
registrant, any and all amendments and supplements (and any and all prospectus supplements, stickers and post-effective amendments) to
this registration statement with all exhibits thereto, and sign any registration statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective
amendments thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, and any applicable securities exchange, securities self-regulatory body or other regulatory entity, granting
unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith and in and about the premises, as fully to all intents and purposes as they might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitutes may lawfully 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/
Nick Langton |
|
Founder,
Chief Executive Officer and Director |
|
January
16, 2026 |
| Nick
Langton |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Aaron Links |
|
Chief
Financial Officer
|
|
January
16, 2026 |
| Aaron
Links |
|
(Principal
Financial and Accounting Officer)
|
|
|
| |
|
|
|
|
| /s/
Jonathan Hart |
|
Director |
|
January
16, 2026 |
| Jonathan
Hart |
|
|
|
|
| |
|
|
|
|
| /s/
Vaughn Taylor |
|
Director
|
|
January
16, 2026 |
| Vaughn
Taylor |
|
|
|
|
| |
|
|
|
|
| /s/
Richard Paolone |
|
Director |
|
January
16, 2026 |
| Richard
Paolone |
|
|
|
|
| |
|
|
|
|
| /s/
Eric Corbett |
|
Director |
|
January
16, 2026 |
| Eric
Corbett |
|
|
|
|
| |
|
|
|
|
| /s/
Laura Sanko |
|
Director |
|
January
16, 2026 |
| Laura
Sanko |
|
|
|
|
SIGNATURE
OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant
to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Mixed Martial Arts Group Limited
has signed this registration statement on January 16, 2026.
| |
Authorized
U.S. Representative |
| |
|
| |
WIMP
2 WARRIOR LLC |
| |
|
| |
By: |
/s/
Nick Langton |
| |
Name: |
Nick
Langton |
| |
Title: |
Manager
and Authorized Officer |
Exhibit
4.5
INDENTURE,
dated as of [ ], by and between Mixed Martial Arts Group Limited, an Australian public company limited by shares (the “Company”),
and [ ], 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
I
DEFINITIONS
SECTION
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture 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 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 with respect to all or any
series of the Securities 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 Company Secretary or an Assistant Company 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 and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate”
means a certificate signed by the chief executive officer, the chief financial officer or the chief accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company”
means the corporation named as the “Company” in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“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 [ ], except that whenever a provision herein refers to an office
or agency of the Trustee in the Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at
[ ].
“Custodian”
means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default”
means an event which is, or after 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 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 Section 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“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 this Indenture, which shall be registered in the
name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Officers’
Certificate” means a certificate signed by the Chief Executive Officer, President or a Vice President and by the Chief Financial
Officer, Vice President of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Company
Secretary or an Assistant Company Secretary of the Company that is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the
Company) and which opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“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 III 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, limited liability company, limited company, partnership, joint-venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency or political subdivision 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 mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
“Responsible
Officer,” when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice
president, company secretary, assistant company secretary, the treasurer, any assistant treasurer, the managing director or any other
officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security
Register” has the meaning specified in Section 2.05.
“Security
Registrar” has the meaning specified in Section 2.05.
“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 in the Security Register.
“Subsidiary”
means, with respect to any Person, (i) any corporation or limited company 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 the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
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, subject to the provisions of Sections 9.01, 9.02, and 10.01,
as in effect at the date of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after
such date, Trust Indenture Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any
successor statute.
“Voting
Stock,” as applied to 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
II
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, subject at all
times to compliance by the Company with any requirements under its articles of association. 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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate of the Company, or established in one or more indentures supplemental hereto: |
| |
(1) |
the
title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
| |
(2) |
the
aggregate principal amount of the Securities of such series initially to be issued and 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
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
| |
(4) |
the
date or dates on which the principal of the Securities of the series is payable and the place(s) of payment; |
| |
(5) |
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; |
| |
(6) |
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 method for determining such dates; |
| |
(7) |
the
right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
| |
(8) |
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; |
| |
(9) |
the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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; |
| |
(10) |
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| |
(11) |
the
form of the Securities of the series including the form of the Certificate of Authentication for such series; |
| |
(12) |
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; |
| |
(13) |
any
and all other terms 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; |
| |
(14) |
whether
the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
| |
(15) |
whether
the Securities will be convertible into ordinary shares or other securities of the Company and, if so, the terms and conditions upon
which such Securities will be so convertible, including the conversion price and the conversion period; |
| |
(16) |
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; and |
| |
(17) |
any
additional or different Events of Default or restrictive covenants provided for with respect to 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 Company Secretary or an Assistant Company 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 of the Company
and as set forth in an Officers’ Certificate of the Company and 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 stock 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)(12). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. 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, 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 of the Company 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 with respect to 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 last 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 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 Authentications.
The
Securities shall be signed on behalf of the Company by its Chief Executive Officer, or its Chief Financial Officer, or its President,
or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Company Secretary, or one of its Assistant
Company Secretaries, under its corporate seal attested by its Company Secretary or one of its Assistant Company Secretaries. 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
a Chief Executive Officer thereof, a Chief Financial Officer thereof, a President or Vice President thereof, or of any Person who shall
have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Company Secretary or Assistant Company Secretary
thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the Chief Executive Officer or the Chief Financial Officer, President or a Vice President, the Treasurer or an Assistant
Treasurer or the Company Secretary or an Assistant Company Secretary, of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. 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.
A
Security shall not be valid or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case,
until authenticated with a certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such certificate shall be conclusive evidence, and the only evidence, that the Security so authenticated has been duly authenticated
and delivered hereunder and that the Security 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 its
Chief Executive Officer, or its Chief Financial Officer, or its President or any Vice President and its Company Secretary or any Assistant
Company Secretary, 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) |
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. 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. On request
of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. 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
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(a) |
If
the Company shall establish pursuant to Section 2.01 that some or all of 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, the
Outstanding Securities of such series which are to be issued as a Global Security, (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. |
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(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, this Section 2.11 shall no
longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, 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
III
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.
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(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 the right reserved so to do, 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 whole or 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.
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(b) |
If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its Chief Executive Officer, or its Chief Financial Officer,
or its President or any Vice President, 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.
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(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). |
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(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 (other than any Securities previously called for redemption) 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, 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
IV
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 or surrendered 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 its Chief Executive Officer, or its Chief Financial Officer, or
its President or any Vice President 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.
SECTION
4.03 Paying Agents.
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(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 with monies held by all other paying agents 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 (an 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.
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(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 any paying agent to the Trustee, 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 company
unless the provisions of Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS
BY
THE COMPANY AND THE TRUSTEE
SECTION
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
If
the Company is not the Security Register, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee
(a) on 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.
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(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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act. |
| |
(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. |
SECTION
5.03 Reports by the Company.
| |
(a) |
The
Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the 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 Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations; 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 Commission. The Company
also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
| |
(b) |
The
Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with
the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
| |
(c) |
The
Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission. |
SECTION
5.04 Reports by the Trustee.
| |
(a) |
The
Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its
actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act. |
| |
(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act,
also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE
VI
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 continuance of such default 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 not less than a majority 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 consecutive days. |
| |
(b) |
In
each and every such case, 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 a majority 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 (or,
if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. |
| |
(c) |
At
any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders
of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under
this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid
interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied,
cured 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 (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or 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 (2) 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 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 affected the Company, or its creditors or property, or any other analogous proceedings in a relevant jurisdiction, 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 this 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 this 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 Collected.
Any
moneys 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 on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; and
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.
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 a majority 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; and (iv) the Trustee for 60 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 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities of
such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request; provided,
however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain preference
or priority over another holder.
Notwithstanding
anything contained herein to the contrary, 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 on 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 8.01, 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 or be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability. The holders either
(a) through the written consent of not less than a majority in aggregate principal amount of the Securities of any series at the time
Outstanding or (b) by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders
of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting, 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)) and except in respect
a provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding Security
affected; provided however that this Section shall not limit the right of holders of Securities of a series to rescind and annul any
acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section (316)(a)(1)
of the Trust Indenture Act are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly included
herein.
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
VII
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: |
| |
(1) |
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: |
| |
(i) |
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 |
| |
(ii) |
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; |
| |
(2) |
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; |
| |
(3) |
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 |
| |
(4) |
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 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 the Chief Executive Officer, or the Chief Financial officer, or the President or any Vice President
and by the Company Secretary or an Assistant Company Secretary or the Treasurer or an Assistant Treasurer thereof (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. |
SECTION
7.03 Trustee Not Responsible for Recitals or Issuance of 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. 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 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 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 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 Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 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 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 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: |
| |
(1) |
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 |
| |
(2) |
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 |
| |
(3) |
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, unless the Trustee’s duty to resign is stayed as provided herein, 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 (1) 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, (2) 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 (3) 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.
ARTICLE
VIII
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. |
| |
(c) |
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 of 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.
SECTION
8.06 Purposes for Which Meetings May Be Called.
A
meeting of holders of any series of Securities may be called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by holders of such series of Securities.
Notwithstanding
anything contained in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of
holders of any series of Securities in accordance with its standard practices.
SECTION
8.07 Call Notice and Place of Meetings.
| |
(a) |
The
Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to
be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at
such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the
date fixed for the meeting to holders of Outstanding Securities of such series. |
| |
(b) |
In
case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose
specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities
of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York or Boston,
Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section. |
SECTION
8.08 Persons Entitled To Vote at Meetings.
To
be entitled to vote at any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding
Securities of such series or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding
Securities of such series by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting
of holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION
8.09 Quorum; Action.
The
Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a
quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the request of holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need
be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided
by the Persons entitled to vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented
and voting at such meeting with respect to a meeting of holders of Outstanding Securities of such series.
Any
resolution passed or decisions taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding
on all the holders of Securities of such series, whether or not present or represented at the meeting.
SECTION
8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a) |
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
| |
(b) |
The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which
case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
| |
(c) |
At
any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security
of such series or proxy. |
| |
(d) |
Any
meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which
such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION
8.11 Counting Votes and Recording Action of Meetings.
The
vote upon any resolution submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall
be subscribed the signatures of the holders of Securities of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
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) |
cure
any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise
defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
| |
(b) |
to
comply with Article X; |
| |
(c) |
to
provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(d) |
to
add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) 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; or |
| |
(h) |
comply
with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or
by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board
Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount
securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest
on any Security of a series payable in currency or currency units other than that stated in the Securities of such series.
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 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
of the Company, 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, may receive an Opinion of
Counsel as conclusive evidence 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 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
X
SUCCESSOR
ENTITY
SECTION
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture or in any of the Securities 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) 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.
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(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 due and punctual
payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each series, 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. |
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(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 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
XI
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
(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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) 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, 7.06, 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.
Subject
to Section 11.05, 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 or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for 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, shall be repaid to the Company or (if then held by the Company) shall be discharged from such
trust in each case, promptly after the end of any such two-year period or, at the request of the Company, on a later date specified by
the Company; 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 an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE
XII
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 Person, either directly or through the Company or any such predecessor or successor
Person, 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 Person, 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
XIII
MISCELLANEOUS
PROVISIONS
SECTION
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture contained 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
Person.
SECTION
13.04 Notices.
Except
as otherwise expressly provided herein any notice or demand that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Mixed Martial Arts Group Limited, Attn: Chief Executive Officer, Level 1, Suite 1, 29-33 The Corso, Manly, New South Wales 2095. Any
notice, election, request or demand by the Company or any Securityholder 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. Any notice or communication
to a holder shall be mailed by first-class mail to his address shown on the Security Register kept by the Security Registrar.
Failure
to mail a notice or communication to a holder or any defect in such notice or communication shall not affect its sufficiency with respect
to other holders. If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly
given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company shall only
be effective upon receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication to holders
of Securities, it shall mail a copy to the Trustee at the same time.
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.
SECTION
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for U.S. federal income tax purposes. The provisions
of this Indenture shall be interpreted to further this intention.
SECTION
13.07 Compliance Certificates and Opinions.
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(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
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 (1) a statement that the Person making such certificate or opinion has read such covenant
or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) 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 as 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 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
13.11 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
13.12 Assignment.
The
Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties thereto.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| MIXED
MARTIAL ARTS GROUP LIMITED |
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| |
| [
], |
| As
Trustee |
Exhibit
4.6
INDENTURE,
dated as of [ ], by and between Mixed Martial Arts Group Limited, an Australian public company limited by shares (the “Company”),
and [ ], 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
I
DEFINITIONS
SECTION
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture 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 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 with respect to all or any
series of the Securities 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 Company Secretary or an Assistant Company 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 and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate”
means a certificate signed by the chief executive officer, the chief financial officer or the chief accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company”
means the corporation named as the “Company” in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“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 [ ], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at [ ].
“Custodian”
means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default”
means an event which is, or after 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 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 Section 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“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 this Indenture, which shall be registered in the
name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Officers’
Certificate” means a certificate signed by the Chief Executive Officer, or the President or a Vice President and by the Chief Financial
Officer, Vice President of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Company
Secretary or an Assistant Company Secretary of the Company that is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the
Company) and which opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“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 III 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, limited liability company, limited company, partnership, joint-venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency or political subdivision 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 mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
“Responsible
Officer,” when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice
president, company secretary, assistant company secretary, the treasurer, any assistant treasurer, the managing director or any other
officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security
Register” has the meaning specified in Section 2.05.
“Security
Registrar” has the meaning specified in Section 2.05.
“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 in the Security Register.
“Subsidiary”
means, with respect to any Person, (i) any corporation or limited company 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 the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee”
shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01,
as in effect at the date of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after
such date, Trust Indenture Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any
successor statute.
“Voting
Stock,” as applied to 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
II
ISSUE,
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION
2.01 Designation and Terms of Securities.
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(a) |
The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited, subject at all
times to compliance by the Company with any requirements under its articles of association. 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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate of the Company, or established in one or more indentures supplemental hereto: |
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(1) |
the
title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
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(2) |
the
aggregate principal amount of the Securities of such series initially to be issued and 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); |
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(3) |
the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
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(4) |
the date or dates on which
the principal of the Securities of the series is payable and the place(s) of payment; |
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(5) |
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; |
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(6) |
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 method for determining such dates; |
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(7) |
the
right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
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(8) |
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; |
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(9) |
the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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; |
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(10) |
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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(11) |
the form of the Securities
of the series including the form of the Certificate of Authentication for such series; |
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(12) |
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; |
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(13) |
any
and all other terms 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; |
| |
(14) |
whether
the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
| |
(15) |
whether
the Securities will be convertible into ordinary shares or other securities of the Company and, if so, the terms and conditions upon
which such Securities will be so convertible, including the conversion price and the conversion period; |
| |
(16) |
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; |
| |
(17) |
any
additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series; and |
| |
(18) |
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 Company Secretary or an Assistant Company 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 of the Company
and as set forth in an Officers’ Certificate of the Company and 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 stock 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)(12). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. 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, 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 of the Company 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 with respect to 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 last 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 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 Authentications.
The
Securities shall be signed on behalf of the Company by its Chief Executive Officer, or its Chief Financial Officer, or its President,
or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Company Secretary, or one of its Assistant
Company Secretaries, under its corporate seal attested by its Company Secretary or one of its Assistant Company Secretaries. 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
a Chief Executive Officer thereof, a Chief Financial Officer thereof, a President or Vice President thereof, or of any Person who shall
have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Company Secretary or Assistant Company Secretary
thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the Chief Executive Officer or the Chief Financial Officer, President or a Vice President, the Treasurer or an Assistant
Treasurer or the Company Secretary or an Assistant Company Secretary, of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. 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.
A
Security shall not be valid or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case,
until authenticated with a certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such certificate shall be conclusive evidence, and the only evidence, that the Security so authenticated has been duly authenticated
and delivered hereunder and that the Security 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 its
Chief Executive Officer, or its Chief Financial Officer, or its President or any Vice President and its Company Secretary or any Assistant
Company Secretary, 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) |
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. 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. On request
of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. 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 XIV, the holders of Senior Indebtedness, as
defined in any supplement to this Indenture pursuant to Article XIV) 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 XIV,
the holders of Senior Indebtedness).
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 some or all of 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, the
Outstanding Securities of such series which are to be issued as a Global Security, (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, this Section 2.11 shall no
longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, 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
III
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.
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(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 the right reserved so to do, 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 whole or 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.
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(b) |
If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its Chief Executive Officer, or its Chief Financial Officer,
or its President or any Vice President, 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.
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(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 (other than any Securities previously called for redemption) 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, 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
IV
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 or surrendered 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 its Chief Executive Officer, or its Chief Financial Officer, or
its President or any Vice President 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.
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 with monies held by all other paying agents 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 (an 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 any paying agent to the Trustee, 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 company
unless the provisions of Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
If
the Company is not the Security Register, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee
(a) on 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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act. |
| |
(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. |
SECTION
5.03 Reports by the Company.
| |
(a) |
The
Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the 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 Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations; 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 Commission. The Company
also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
| |
(b) |
The
Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with
the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
| |
(c) |
The
Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission. |
SECTION
5.04 Reports by the Trustee.
| |
(a) |
The
Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its
actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act. |
| |
(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act,
also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE
VI
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 continuance of such default 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 not less than a majority 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 consecutive days. |
| |
(b) |
In
each and every such case, 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 a majority 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 (or,
if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series are discount securities,
that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium,
if any, on) and accrued and unpaid interest, if any, on the Securities of such series shall remain subordinated to the extent provided
in Article XIV. |
| |
(c) |
At
any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders
of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under
this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid
interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied,
cured 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 (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or 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 (2) 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 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 affected the Company, or its creditors or property, or any other analogous proceedings in a relevant jurisdiction, 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 this 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 this 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 Collected.
Any
moneys 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 on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
| FIRST: |
To
the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; |
| SECOND: |
To
the payment of all Senior Indebtedness of the Company if and to the extent required by Article XIV; and |
| 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. |
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 a majority 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; and (iv) the Trustee for 60 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 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities of
such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request; provided,
however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain preference
or priority over another holder.
Notwithstanding
anything contained herein to the contrary, 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 on 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 8.01, 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 or be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability.
The
holders either (a) through the written consent of not less than a majority in aggregate principal amount of the Securities of any series
at the time Outstanding or (b) by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by
the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting,
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)) and except
in respect a provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding
Security affected; provided however that this Section shall not limit the right of holders of Securities of a series to rescind and annul
any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section
316(a)(1) of the Trust Indenture Act are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly
included herein.
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
VII
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: |
| |
(1) |
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: |
| |
(i) |
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 |
| |
(ii) |
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; |
| |
(2) |
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; |
| |
(3) |
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 |
| |
(4) |
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 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 the Chief Executive Officer, or the Chief Financial officer, or the President or any Vice President
and by the Company Secretary or an Assistant Company Secretary or the Treasurer or an Assistant Treasurer thereof (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. |
SECTION
7.03 Trustee Not Responsible for Recitals or Issuance of 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. 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 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 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 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 Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 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 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 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: |
| |
(1) |
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 |
| |
(2) |
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 |
| |
(3) |
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, unless the Trustee’s duty to resign is stayed as provided herein, 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 (1) 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, (2) 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 (3) 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.
ARTICLE
VIII
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. |
| |
(c) |
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 of 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.
SECTION
8.06 Purposes for Which Meetings May Be Called.
A
meeting of holders of any series of Securities may be called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by holders of such series of Securities.
Notwithstanding
anything contained in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of
holders of any series of Securities in accordance with its standard practices.
SECTION
8.07 Call Notice and Place of Meetings.
| |
(a) |
The
Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to
be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at
such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the
date fixed for the meeting to holders of Outstanding Securities of such series. |
| |
(b) |
In
case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose
specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities
of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York or Boston,
Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section. |
SECTION
8.08 Persons Entitled To Vote at Meetings.
To
be entitled to vote at any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding
Securities of such series or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding
Securities of such series by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting
of holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION
8.09 Quorum; Action.
The
Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a
quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the request of holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need
be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided
by the Persons entitled to vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented
and voting at such meeting with respect to a meeting of holders of Outstanding Securities of such series.
Any
resolution passed or decisions taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding
on all the holders of Securities of such series, whether or not present or represented at the meeting.
SECTION
8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings.
| |
(a) |
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
| |
(b) |
The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which
case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
| |
(c) |
At
any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security
of such series or proxy. |
| |
(d) |
Any
meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which
such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION
8.11 Counting Votes and Recording Action of Meetings.
The
vote upon any resolution submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall
be subscribed the signatures of the holders of Securities of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
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) |
cure
any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise
defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
| |
(b) |
to
comply with Article X; |
| |
(c) |
to
provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(d) |
to
add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) 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; or |
| |
(h) |
comply
with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or
by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board
Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount
securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest
on any Security of a series payable in currency or currency units other than that stated in the Securities of such series.
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 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
of the Company, 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, may receive an Opinion of
Counsel as conclusive evidence 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 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
X
SUCCESSOR
ENTITY
SECTION
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture or in any of the Securities 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) 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 due and punctual
payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each series, 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 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
XI
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
(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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) 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, 7.06, 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.
Subject
to Section 11.05, 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 or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for 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, shall be repaid to the Company or (if then held by the Company) shall be discharged from such
trust in each case, promptly after the end of any such two-year period or, at the request of the Company, on a later date specified by
the Company; 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 an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE
XII
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 Person, either directly or through the Company or any such predecessor or successor
Person, 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 Person, 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
XIII
MISCELLANEOUS
PROVISIONS
SECTION
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture contained 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
Person.
SECTION
13.04 Notices.
Except
as otherwise expressly provided herein any notice or demand that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Mixed Martial Arts Group Limited, Attn: Chief Executive Officer, Level 1, Suite 1, 29-33 The Corso, Manly, New South Wales 2095. Any
notice, election, request or demand by the Company or any Securityholder 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. Any notice or communication
to a holder shall be mailed by first-class mail to his address shown on the Security Register kept by the Security Registrar. Failure
to mail a notice or communication to a holder or any defect in such notice or communication shall not affect its sufficiency with respect
to other holders. If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly
given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company shall only
be effective upon receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication to holders
of Securities, it shall mail a copy to the Trustee at the same time.
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.
SECTION
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for U.S. federal income tax purposes. The provisions
of this Indenture shall be interpreted to further this intention.
SECTION
13.07 Compliance Certificates and Opinions.
| |
(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
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 (1) a statement that the Person making such certificate or opinion has read such covenant
or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) 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 as 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 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
13.11 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
13.12 Assignment.
The
Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE
XIV
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 the Securities of such series.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| MIXED MARTIAL ARTS GROUP LIMITED |
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| |
| [
], |
| As Trustee |
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Exhibit
5.1
Our
Ref: 242384:PAG
16
January 2026
Mixed
Martial Arts Limited [ACN 163 057 565] (Company)
Level
1, Suite 1, 29-33 The Corso
MANLY, NEW SOUTH WALES, 2095
| RE: |
AUSTRALIAN LEGAL OPINION
F-3 REGISTRATION STATEMENT |
To
the Board,
| 1 | Background |
| | |
| 1.1 | We
are lawyers qualified to practice law in the Commonwealth of Australia. |
| | |
| 1.2 | We
have acted as counsel to the Company to provide this legal opinion in connection with the
Company’s registration statement on Form F-3, to which this opinion letter is attached
as an exhibit (such registration statement, including the documents incorporated by reference
therein, the Registration Statement) to be filed by the Company with the United States
Securities and Exchange Commission (the SEC) on or about the date hereof pursuant
to the United States Securities Act of 1933, as amended (the Securities Act). |
| | |
| 1.3 | The
Registration Statement relates to the proposed issuance and sale by the Company from time
to time of a currently indeterminate number of: |
| (a) | ordinary
shares in the Company (Shares); |
| | | |
| (b) | preferred
shares (Preferred Shares) |
| | | |
| (c) | debt
securities (the Debt Securities); |
| | | |
| (d) | warrants
to purchase Shares, Preferred Shares and/or Debt Securities (Warrants); |
| | | |
| (e) | rights
to purchase Shares, Preferred Shares and/or Debt Securities (the Rights); and |
| | | |
| (f) | units
consisting of one or more Share. Preferred Share, Debt Securities, and/or Warrants (the Units); |
as
may from time to time be offered and sold at currently indeterminate prices by the Company pursuant to the Registration Statement with
the aggregate offering price not to exceed
Mixed Martial Arts Group Limited | -2- | 16 January 2026 |
US$50,000,000.
| 1.4 | The
Registration Statement also relates to the proposed issuance of up to 4,628,570 Shares upon
conversion of existing Series A Preferred Shares and exercise of existing warrants held by
Dominari Securities LLC. |
| | |
| 1.5 | We
note that the Registration Statement includes: |
| (a) | a
base prospectus relating to the securities/rights referred to in paragraph 1.3 of this letter
(the Base Prospectus) which may be supplemented in the future by one or more prospectus
supplements; and |
| | | |
| (b) | a
resale prospectus relating to the securities referred to in paragraph 1.4 of this letter
(Resale Prospectus) |
| 2 | Examination
and Enquiries |
| | |
| 2.1 | For
the purpose of giving this opinion letter, we have examined: |
| (a) | the
Registration Statement; |
| | | |
| (b) | the
Company’s Constitution; |
| | | |
| (c) | written
resolutions of the board of directors of the Company passed on 15 January 2026 which resolved,
among other things, to approve the filing of the Registration Statement with the Securities
and Exchange Commission (Board Resolution). |
| 2.2 | For
the purpose of giving this opinion letter we have, on 16 January 2026 (at 7.47am, Melbourne
Australia time), made an online search of the register kept by the Australian Securities
and Investments Commission in respect of the Company for the purposes of identifying whether
(i) the Company is subject to any notified formal insolvency proceedings, and (ii) any applications
or orders have been registered by the Registrar for the dissolution or strike-off of the
Company (the Company Search). |
| 3 | Assumptions |
| | |
| 3.1 | In
giving this opinion we have assumed, without further verification, the completeness and accuracy
of all documentation that we have reviewed. We have also relied upon the following assumptions,
which we have not independently verified: |
| (a) | copies
of documents, conformed copies or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals. |
| | | |
| (b) | all
signatures, initials, stamps, and seals are genuine; |
| | | |
| (c) | that
each of the individuals who signs as, or otherwise claims to be, an officer of the Company
is the individual whom he or she claims to be and holds the office he or she claims to hold; |
| | | |
| (d) | the
accuracy and completeness of all factual representations expressed in or implied by
the documents we have examined; |
Mixed Martial Arts Group Limited | -3- | 16 January 2026 |
| (e) | that
all public records of the Company which we have examined are accurate and that the information
disclosed by the Company Search is true and complete and that such information has not since
then been altered; |
| | | |
| (f) | the
Registration Statement, as finally amended, has become effective under the Securities Act
and such effectiveness shall not be terminated or rescinded; |
| | | |
| (g) | the
Shares will be sold or issued in accordance with a duly authorised, executed and delivered
sales or similar agreement or pursuant to valid notices of exercise in the case of the Shares
the subject of the Resale Prospectus; |
| | | |
| (h) | the
terms of the rights which may be convertible to Shares under any of the Preferred Shares,
Debt Securities, Warrants, Rights or Units (those rights and securities together, and for
the avoidance of doubt including the Preferred Shares, described herein as the Rights
to Shares) will comply with the Constitution of the Company and the Australian Corporations
Act 2001 (Cth) (Corporations Act) when and if agreed, this may include requirements
to seek shareholder approvals in particular in respect of any Preferred Shares; |
| | | |
| (i) | an
appropriate prospectus supplement with respect to each of: (i) the Shares the subject of
the Base Prospectus; and (ii) the Rights to Shares, will (if required) be prepared, delivered
and filed in compliance with the Securities Act and the rules and regulations thereunder
prior to the allotment and/or issue of any such Shares or Rights to Shares; |
| | | |
| (j) | that
the choice of laws by which the Rights to Shares are expressed to be governed is or will
be valid under the chosen laws; |
| | | |
| (k) | the Directors of the Company, including any pricing committee or other appropriate committee appointed thereby, and appropriate officers of the Company have, or will at the appropriate time, take all necessary corporate action to approve the allotment and issue of the Shares, the Rights to Shares and related matters;
|
| (l) | that
the Directors of the Company acted or will act in accordance with the Corporations Act in
approving the resolutions recorded in the Board Resolution and that all actions to be carried
out by the Company pursuant to the Board Resolution are or will be in its commercial interests; |
| | | |
| (m) | that
appropriate further resolutions of the Board will be passed to approve the specific terms
of any Rights to Shares as, and when, and if, they agreed; |
| | | |
| (n) | that
the Shares and any Rights to Shares when issued will be accurately and properly completed,
duly authorised, executed and delivered on behalf of the Company and authenticated, issued
and paid for and registered in the register of holders of the relevant securities maintained
for this purpose, in each case in accordance with the relevant security or interest, the
then operative Constitution of the Company and all applicable laws (for the avoidance of
doubt, as in force at all relevant times); |
Mixed Martial Arts Group Limited | -4- | 16 January 2026 |
| (o) | that
no agreement, document or obligation to or by which the Company (or its assets) is a party
or bound and no injunction or other court order against or affecting the Company (or its
assets) would be breached or infringed by the matters contemplated by the performance of
the actions to be carried out pursuant to, or any other aspect of, the issue of the Shares
or the Rights to Shares; |
| | | |
| (p) | that
there are no facts or circumstances (and no documents, agreements, instruments or correspondence)
which are not apparent from the face of the documents listed in paragraph 2.1 or which have
not been disclosed to us that may affect the validity or enforceability of the documents
listed in paragraph 2.1 or any obligation therein or otherwise affect the opinions expressed
in this opinion letter; |
| | | |
| (q) | that
the Company is and will at all relevant times remain in compliance with all applicable anti-corruption,
anti-money laundering, anti-terrorism, sanctions, exchange controls and human rights laws
and regulations; |
| | | |
| (r) | that
there are no provisions of the laws of any jurisdiction outside the Commonwealth of Australia
that would have any implication for the opinions we express and that, insofar as the laws
of any jurisdiction outside the Commonwealth of Australia may be relevant to this opinion
letter, such laws have been and will be complied with. |
| 4 | Opinion |
| | |
| 4.1 | Based
upon, and subject to, the foregoing assumptions and the qualifications set out in section
5 below, and having regard to such legal considerations as we consider relevant, we are of
the opinion that: |
| (a) | the
Company is a public limited company duly incorporated under the laws of the Commonwealth
of Australia; |
| | | |
| (b) | the
Shares and Rights to Shares (including any Preferred Shares) will, when the names of the
holders of such Shares or Rights to Shares are entered into the relevant register/s of members
of the Company and subject to the receipt by the Company in cash of the aggregate issue price
in respect of all the Shares or Rights to Shares (including any Preferred Shares) be validly
issued; and |
| | | |
| (c) | the
Company has the corporate capacity to enter into and deliver the agreements to issue the
Shares and the Rights to Shares (including any Preferred Shares). |
| 4.2 | This
opinion is strictly limited to the matters expressly stated in this paragraph 4 and is not
to be construed as extending by implication to any other matter. |
| | |
| 5 | Qualifications |
| | |
| 5.1 | The
opinions expressed above are subject to the following qualifications: |
Mixed Martial Arts Group Limited | -5- | 16 January 2026 |
| (a) | for
the purposes of giving this opinion letter, we have only examined and relied on those documents
and enquiries referred to in paragraphs 2.1 and 2.2 respectively and made the Company Search.
We have made no further enquiries concerning the Company of any other person or any other
matter in connection with the giving of this opinion letter; |
| | | |
| (b) | we
have made no enquiry, and express no opinion, as to any matter of fact; |
| | | |
| (c) | we
express no opinion as to any agreement, instrument or other document other than as specified
in this letter or as to any liability to tax which may arise or be suffered as a result of
or in connection with the Registration Statement or the transactions contemplated thereby; |
| | | |
| (d) | this
opinion letter only applies to those facts and circumstances which exist as at today’s
date and we assume no obligation or responsibility to update or supplement this letter to
reflect any facts or circumstances which may subsequently come to our attention, any changes
in laws which may occur after today, or to inform the addressee of any change in circumstances
happening after the date of this letter which would alter our opinion |
| | | |
| (e) | the
Company Search is not conclusively capable of revealing whether or not: |
| (1) | a
winding-up order has been made or a resolution passed for the winding up of a company; |
| | | |
| (2) | an
administration petition or order has been presented or made; and |
| | | |
| (3) | a
receiver, administrative receiver, administrator or liquidator has been appointed, a company voluntary arrangement proposed or approved
or any other insolvency proceeding commenced. |
| 6 | Law |
| | |
| 6.1 | This
opinion letter and any non-contractual obligations arising out of or in connection with this
opinion letter shall be governed by, and construed in accordance with, the laws of the Commonwealth
of Australia as at the date of this opinion letter. Such choice of governing law is without
prejudice to the requirements of the Securities Act |
| | |
| 6.2 | We
express no opinion as to, and we have not investigated for the purposes of this opinion letter,
the laws of any jurisdiction other than the Commonwealth of Australia. |
| 7 | Disclosure
and reliance |
| | |
| 7.1 | This
opinion letter is addressed to you in connection with the Registration Statement. We hereby
consent to the filing of this opinion letter as an exhibit to the Registration Statement,
we do not admit that we are in the category of persons whose consent is required under section
7 of the Securities Act. |
| | |
| 7.2 | Other
than for the purpose set out above in paragraph 7.1, this opinion letter may not be relied
upon, or assigned, for any purpose, without our prior written consent, which may be granted
or withheld in our discretion. |
| | |
| 7.3 | This
opinion letter is given by QR Lawyers Pty Ltd and no partner, member or employee assumes
any personal responsibility for it nor shall owe any duty of care in respect of it. |
Yours
faithfully
Patrick
Gowans
QR
LAWYERS PTY LTD
Exhibit
5.2
 |
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, New York 10112-0015
212.653.8700
main
212.653.8701
fax
www.sheppardmullin.com |
January
16, 2026
VIA
ELECTRONIC MAIL
Mixed
Martial Arts Group Limited
Level
1, Suite 1, 29-33 The Corso
Manly,
New South Wales 2095
Australia
Re:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to Mixed Martial Arts Group Limited, an Australian public company limited by shares (the “Company”),
in connection with the Registration Statement on Form F-3 (as amended, the “Registration Statement”), filed by the
Company on January 16, 2026 with the Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended (the “Securities Act”). The Registration Statement relates to the proposed issuance and sale from
time to time pursuant to Rule 415 under the Securities Act, as set forth in the Registration Statement, the prospectus contained therein
(the “Base Prospectus”) and one or more supplements to the Base Prospectus (each, a “Prospectus Supplement”)
and any free-writing prospectus(es) of up to $50,000,000 in aggregate offering proceeds, of the following securities of the Company (collectively,
the “Securities”):
| ● |
ordinary shares, no par
value per share (the “Ordinary Shares”); |
| |
|
| ● |
preferred shares, no par
value per share (the “Preferred Shares”); |
| |
|
| ● |
debt securities, in one
or more series (the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the
date of the first issuance of Debt Securities thereunder, but which may not be guaranteed by any affiliates of the Company or any
other person, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the form
filed as Exhibit 4.5 or Exhibit 4.6 to the Registration Statement (the “Indenture”); |
| |
|
| ● |
warrants to purchase Ordinary
Shares, and/or Debt Securities (the “Warrants”), which may be issued under warrant agreements (each, a “Warrant
Agreement”), to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between
the Company and a warrant agent to be selected by the Company (the “Warrant Agent”); |
| |
|
| ● |
rights to purchase Ordinary
Shares, and/or Debt Securities or other securities of the Company (the “Rights”), which may be issued under one
or more rights agreements (each, a “Rights Agreement”) to be entered into by and between the Company and a bank,
trust company or other rights agent to be named therein (the “Rights Agent”); and |
| |
|
| ● |
units consisting of one
or more Ordinary Shares, Debt Securities, and/or Warrants (the “Units”), which may be issued under unit agreements
(each, a “Unit Agreement”), to be dated on or about the date of the first issuance of the applicable Units thereunder,
by and between the Company and the other parties thereto (the “Unit Parties”). |
January
16, 2026
Page
2
We
are delivering this opinion pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In
connection with this opinion, we have examined and relied upon originals, or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion
expressed below. As to certain factual matters, we have relied upon certificates of officers of the Company and have not independently
sought to verify such matters.
In
rendering this opinion, we have assumed (i) the genuineness and authenticity of all signatures on original documents; (ii) the authenticity
of all documents submitted to us as originals; (iii) the conformity to originals of all documents submitted to us as copies; (iv) the
accuracy, completeness and authenticity of certificates of public officials; (v) the due authorization, execution and delivery of all
documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents; (vi) that the Registration
Statement and any required post-effective amendment thereto have all become effective under the Securities Act and the Base Prospectus,
any and all Prospectus Supplement(s) required by applicable laws and any and all free-writing prospectus(es) related to the offer and
sale of the Securities have been delivered and filed as required by such laws; (vii) that the issuance and sale of the Securities do
not violate any applicable law, are in conformity with the Company’s then operative Constitution, as amended (the “Charter”),
and do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or its properties or assets;
(viii) a Prospectus Supplement will have been prepared and filed with the Commission describing the Securities offered thereby; (ix)
a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly
executed and delivered by the Company and the other parties thereto, as applicable; and (x) if the holders of the Debt Securities are
granted rights to inspect corporate books and records and to vote in the election of directors or any matters on which stockholders of
the Company may vote, such rights will be set forth in the Charter or the Charter grants to the Company’s Board of Directors the
power to confer such voting or inspection rights and the Company’s Board of Directors will have conferred such rights. It is understood
that this opinion is to be used only in connection with the offer and sale of Securities while the Registration Statement is effective
under the Securities Act.
January
16, 2026
Page
3
With
respect to our opinion as to the Securities convertible into, exercisable for, or including Ordinary Shares, we have been advised by
the Company and for purposes of this opinion we have assumed that, at the time of issuance and sale, a sufficient number of Ordinary
Shares are authorized and available for issuance and that the consideration for the issuance and sale of the Ordinary Shares (or Preferred
Shares or Debt Securities convertible into Ordinary Shares, or for Warrants or Rights exercisable for Ordinary Shares, or Units consisting
of or including Ordinary Shares) in an amount that is not less than the par value of the Ordinary Shares. We have also assumed with respect
to the Debt Securities offered under the Registration Statement and the related Indenture, that such Debt Securities will be executed
in the form filed as an exhibit to the Registration Statement and that the Trustee under the Indenture shall have been qualified pursuant
to the Trust Indenture Act of 1939 at the time the Debt Securities are offered or issued (or such later time as may be permitted pursuant
to the rules, regulations, interpretations or positions of the Commission). We have also assumed that with respect to any Securities
being issued upon conversion of any convertible Preferred Shares or Debt Securities or upon exercise of any Warrants or Rights or relating
to any Units, the applicable convertible Preferred Shares or Debt Securities or Warrants or Rights or Units will be valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights,
and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. We have
also assumed with respect to the Warrants offered under the Registration Statement, that (a) such Warrants will be issued pursuant to
a Warrant Agreement, (b) the Warrant Agreement will be filed either as an exhibit to an amendment to the Registration Statement to be
filed after the date of this opinion or as an exhibit to a Current Report on Form 6-K to be filed after the Registration Statement has
become effective, and (c) the particular terms of any series of Warrants will be set forth in a supplement to the prospectus forming
a part of the Registration Statement. We have also assumed with respect to the Rights offered under the Registration Statement, that
(a) such Rights will be issued pursuant to a Rights Agreement, (b) the Rights Agreement will be filed either as an exhibit to an amendment
to the Registration Statement to be filed after the date of this opinion or as an exhibit to a Current Report on Form 6-K to be filed
after the Registration Statement has become effective, and (c) the particular terms of any series of Rights will be set forth in a supplement
to the prospectus forming a part of the Registration Statement. We have also assumed with respect to the Units offered under the Registration
Statement, that (a) such Units will be issued pursuant to a Unit Agreement, (b) the Unit Agreement will be filed either as an exhibit
to an amendment to the Registration Statement to be filed after the date of this opinion or as an exhibit to a Current Report on Form
8-K to be filed after the Registration Statement has become effective, and (c) the particular terms of any series of Units will be set
forth in a supplement to the prospectus forming a part of the Registration Statement.
We
express no opinion as to any provision of the Debt Securities that: (a) relates to the subject matter jurisdiction of any federal court
of the United States of America or any federal appellate court to adjudicate any controversy related to the Debt Securities or (b) contains
a waiver of an inconvenient forum. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter
hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or
to the sale or issuance thereof. We express no opinions concerning (i) the validity or enforceability of any provisions contained in
Indentures that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot
be effectively waived under applicable law; or (ii) the validity or enforceability of any provisions contained in Warrant Agreements,
Rights Agreements or Unit Agreements that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights
or benefits that cannot be effectively waived under applicable law.
Our
opinion is limited to the laws of the State of New York. Without limiting the generality of the foregoing, we express no opinion with
respect to (i) the qualification of the Ordinary Shares under the securities or blue sky laws of any state or any foreign jurisdiction
or (ii) the compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
Various matters concerning the laws of Australia are addressed in the opinion of QR Lawyers Pty Ltd, separately provided to you.
January
16, 2026
Page
4
On
the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that:
1.
With respect to any series of the Debt Securities issued under the Indenture and offered under the Registration Statement, provided that
(i) the Indenture has been duly authorized by the Company and the Trustee by all necessary corporate action; (ii) the Indenture in substantially
the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by the Company and the Trustee; (iii)
the terms of the Debt Securities and of their issuance and sale have been duly authorized by the Company by all necessary corporate action;
(iv) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture; and
(v) the Debt Securities have been duly executed and delivered by the Company and authenticated by the Trustee pursuant to the Indenture
and delivered against the requisite payment therefor, which the Company has received, then the Debt Securities, when issued and sold
in accordance with the Indenture and as contemplated by the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s),
and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms.
2.
With respect to the Warrants issued under a Warrant Agreement and offered under the Registration Statement, provided that (i) the Warrant
Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action; (ii) the Warrant Agreement
has been duly executed and delivered by the Company and the Warrant Agent as described in the Registration Statement, the Base Prospectus
and the related Prospectus Supplement(s); (iii) the issuance and terms of the Warrants have been duly authorized by the Company by all
necessary corporate action; and (iv) the Warrants have been duly executed and delivered by the Company and authenticated by the Warrant
Agent pursuant to the Warrant Agreement and delivered against the requisite payment therefor, which the Company has received, and assuming
that the Warrants are then issued and sold as contemplated in the Registration Statement, the Base Prospectus and the Prospectus Supplement(s),
then the Warrants, when issued and sold in accordance with the Warrant Agreement and a duly authorized, executed and delivered purchase,
underwriting or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms.
3.
With respect to the Rights issued under a Rights Agreement and offered under the Registration Statement, provided that (i) the Rights
Agreement has been duly authorized by the Company and the Rights Agent by all necessary corporate action; (ii) the Rights Agreement has
been duly executed and delivered by the Company and the Rights Agent as described in the Registration Statement, the Base Prospectus
and the related Prospectus Supplement(s); (iii) the issuance and terms of the Rights have been duly authorized by the Company by all
necessary corporate action; and (iv) the Rights have been duly executed and delivered by the Company and authenticated by the Rights
Agent pursuant to the Rights Agreement and delivered against the requisite payment therefor, which the Company has received, and assuming
that the Rights are then issued and sold as contemplated in the Registration Statement, the Base Prospectus and the Prospectus Supplement(s),
then the Rights, when issued and sold in accordance with the Rights Agreement and a duly authorized, executed and delivered purchase,
underwriting or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms.
4.
With respect to the Units issued under a Unit Agreement and offered under the Registration Statement, provided that (i) the Unit Agreement
has been duly authorized by the Company and the Unit Parties by all necessary corporate action; (ii) the Unit Agreement has been duly
executed and delivered by the Company and the Unit Parties as described in the Registration Statement, the Base Prospectus and the related
Prospectus Supplement(s); (iii) the issuance and terms of the Units have been duly authorized by the Company by all necessary corporate
action; and (iv) the Units have been duly executed and delivered by the Company and authenticated by the Unit Parties pursuant to the
Unit Agreement and delivered against the requisite payment therefor, which the Company has received, and assuming that the Units are
then issued and sold as contemplated in the Registration Statement, the Base Prospectus and the Prospectus Supplement(s), then the Units,
when issued and sold in accordance with the Unit Agreement and a duly authorized, executed and delivered purchase, underwriting or similar
agreement, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their
terms.
January
16, 2026
Page
5
Our
opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether
considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
(b) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding
is brought; and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification
of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We
express no opinion as to (a) any provision for liquidated damages, late charges, monetary penalties, make-whole premiums or other economic
remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction,
venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys’
fees, where such payment is contrary to law or public policy, (e) advance waivers of claims, defenses, rights granted by law, or notice,
opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (f) waivers
of broadly or vaguely stated rights, (g) provisions for exclusivity, election or cumulation of rights or remedies, (h) provisions authorizing
or validating conclusive or discretionary determinations, (k) grants of setoff rights, (i) proxies, powers and trusts, (j) provisions
prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (k) any provision to the extent it
requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of such a claim) be
converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides, and (l) the
severability, if invalid, of provisions to the foregoing effect.
With
your consent, we have assumed (a) that each of the Warrants, Rights and Units and the applicable Warrant Agreements, Subscription Agreements
and Unit Agreements governing such Securities (collectively, the “Documents”) will be governed by the internal laws
of the State of New York, (b) that each of the Documents has been or will be duly authorized, executed and delivered by the parties thereto,
(c) that each of the Documents constitutes or will constitute legally valid and binding obligations of the parties thereto other than
the Company, enforceable against each of them in accordance with their respective terms, and (d) that the status of each of the Documents
as legally valid and binding obligations of the parties will not be affected by any (i) breaches of, or defaults under, agreements or
instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents,
approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
Please
note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
The Securities may be issued from time to time on a delayed or continuous basis, but this opinion is based upon currently existing statutes,
rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law
or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We
hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the use of our name
wherever it appears in the Registration Statement, the Base Prospectus, and any Prospectus Supplement. In giving such consent, we do
not believe that we are “experts” within the meaning of such term as used in the Securities Act or the rules and regulations
of the Commission issued thereunder with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
This
opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent
changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very
truly yours,
| /s/
Sheppard, Mullin, Richter & Hampton, LLP |
|
| Sheppard, Mullin, Richter
& Hampton, LLP |
|
Exhibit
23.1
CONSENT
ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Shareholders
and Board of Directors
Mixed
Martial Arts Group Limited
Level
1, Suite 1, 29-33 The Corso
Manly,
New South Wales 2095
Australia
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated
October 31, 2025, relating to the consolidated financial statements of Mixed Martial Arts Group Limited and its subsidiaries (the Company)
appearing in the Company’s Annual Report on Form 20-F for the year ended June 30, 2025. Our report contains an explanatory paragraph
regarding the Company’s ability to continue as a going concern.
We
also consent to the reference to us under the caption ‘Experts’ in the Prospectus.
/s/
BDO Audit Pty Ltd
BDO
Audit Pty Ltd
Sydney,
Australia
January
16, 2026
0001981519
EX-FILING FEES
0001981519
2026-01-16
2026-01-16
0001981519
1
2026-01-16
2026-01-16
0001981519
2
2026-01-16
2026-01-16
0001981519
3
2026-01-16
2026-01-16
0001981519
4
2026-01-16
2026-01-16
0001981519
5
2026-01-16
2026-01-16
0001981519
6
2026-01-16
2026-01-16
0001981519
7
2026-01-16
2026-01-16
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
xbrli:pure
Exhibit
107
Calculation
of Filing Fee Tables
Form
F-3
Mixed
Martial Arts Group Limited
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security
Type | |
Security
Class Title | |
Fee
Calculation
or Carry
Forward
Rule |
| |
Amount
Registered | | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum
Aggregate
Offering
Price | | |
Fee Rate |
| |
Amount of
Registration
Fee |
| Fees to Be Paid | |
Equity | |
Ordinary Shares, no par value per share | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Equity | |
Preferred Shares, no par value per share | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Debt | |
Debt Securities | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Equity | |
Warrants | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Equity | |
Rights | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Equity | |
Units | |
| Rule
457 (o) |
| |
| | | |
| | | |
| | | |
| |
| |
|
| Fees to Be Paid | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
| Rule 457(o |
)(1)(2) | |
| | | |
| | | |
$ | 50,000,000.00 | (3) | |
| 0.00013810 |
| $ |
6,905.00 |
| | |
| |
| |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| | |
Total Offering Amounts | | |
$ | 50,000,000.00 | | |
| |
| $ |
6,905.00 |
| | |
Total Fees Previously Paid | | |
| | | |
| |
| |
- |
| | |
Total Fee Offsets | | |
| | | |
| |
| |
- |
| | |
Net Fee due | | |
| | | |
| |
| $ |
6,905.00 |
| (1) |
There
are being registered hereunder such indeterminate number of the securities of each identified class being registered as may be sold
by the registrant from time to time at indeterminate prices, with the maximum aggregate offering price not to exceed $50,000,000.
If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such
greater principal amount as shall result in an aggregate offering price not to exceed $50,000,000, less the aggregate dollar amount
of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other
securities registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the
registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also
include such indeterminate number of ordinary shares, preferred shares and the amount of debt securities as may be issued upon conversion
of or exchange for debt securities that provide for conversion or exchange, upon exercise of warrants or rights or pursuant to the
anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (“Securities
Act”), the ordinary shares being registered hereunder include such indeterminate number of ordinary shares as may be issuable
with respect to the ordinary shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| |
|
| (2) |
The
proposed maximum aggregate offering price per unit of 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 calculating the registration fee pursuant to Rule 457(o) under the Securities Act. In no event will the
aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement exceed
$50,000,000. |
N/A