Kingstone Companies, Inc S-3, filed Apr 5, 2024
Kingstone Companies, Inc. (KINS)
S-3
2024-04-05
View Original
Added on
October 27, 2026
As filed with the Securities and Exchange Commission on April 5, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KINGSTONE COMPANIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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36-2476480
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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15 Joys Lane
Kingston, New York 12401
(845) 802-7900
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
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Meryl S. Golden
President and Chief Executive Officer
Kingstone Companies, Inc.
15 Joys Lane
Kingston, New York 12401
(845) 802-7900
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
____________________
Copies of all communications, including communications sent to agent for service, should be sent to:
Fred Skolnik, Esq.
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
(516) 296-7000
____________________
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,
check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer,
a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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____________________
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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, or until this registration statement shall
become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell
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 or
jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated April 5, 2024
PROSPECTUS
Kingstone Companies, Inc.
$50,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
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We may offer, issue and sell, from time to time, in one or more offerings, the securities described in this prospectus. The
aggregate initial offering price of all securities sold under this prospectus by us will not exceed $50,000,000.
This prospectus describes the general terms of our securities and the general manner in which our securities will be offered by us.
We will provide the specific terms of these offerings in supplements to this prospectus. We may authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The applicable prospectus supplement and any
related free writing prospectus may also add, update or change information contained or incorporated by reference in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying any of the securities being offered.
We may offer securities in amounts, at prices and on terms determined at the time of offering. Our securities may be sold directly
to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell our securities, we will name them and describe their compensation in a prospectus supplement. No securities may be sold without delivery
of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Our common stock is listed on the Nasdaq Capital Market under the symbol “KINS.”
As of April 4, 2024, the aggregate market value of our outstanding common stock held by non-affiliates, or the public float, was
$45,142,265, based on 11,007,824 shares of common stock outstanding, of which 9,708,014 shares were held by non-affiliates, and a price of $4.65 per share, which was the last reported sale price of our common stock on the Nasdaq Capital Market on April
2, 2024. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell shares pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period,
so long as the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. During the 12 calendar months prior to, and including, the date of this prospectus, we have not sold securities pursuant to General
Instruction I.B.6 of Form S-3.
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Investing in our securities involves a high degree of risk. You should review carefully the risks and
uncertainties described under the heading “Risk Factors” on page 4 and contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are
incorporated by reference in this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement.
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The date of this prospectus is , 2024.
TABLE OF CONTENTS
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission,
referred to as the SEC, using a “shelf” registration process. Under this shelf registration process, we may from time to time offer and sell any of the securities or any combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount not to exceed $50,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. Such prospectus supplement may also add, update or change information contained in this prospectus. If there is any
inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should read the information in this prospectus, the applicable prospectus
supplement, any free writing prospectus that we authorize for use in connection with this offering and the additional information incorporated by reference herein as provided for under the heading “Incorporation of Certain Information by Reference.”
You should rely only on the information contained or incorporated by reference in this prospectus, any
applicable prospectus supplement and any free writing prospectuses that we authorize for use in connection with this offering. We have not authorized anyone to provide you with different or additional information. If anyone provides you with different
or additional information, you should not rely on it. We are not making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted or in which the person making such offer or solicitation is not qualified to do so or
to any person to whom it is unlawful to make such offer or solicitation. You should not assume that the information contained or incorporated by reference in this prospectus, any prospectus supplement, or any free writing prospectus that we authorize
for use in connection with this offering is accurate or complete as of any date other than the dates of the applicable documents. Our business, financial condition, liquidity, results of operations and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained in some of the documents described herein,
but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be
incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Obtain More Information.” As permitted by the rules
and regulations of the SEC, the registration statement that contains this prospectus includes additional information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the SEC’s web
site or at the SEC’s offices described below under the heading “Where You Can Obtain More Information.”
Unless the context of this prospectus indicates otherwise, the terms “Kingstone,” the “Company,” “we,” “us” or
“our” refer to Kingstone Companies, Inc. and its consolidated subsidiaries. “KICO” refers to Kingstone Insurance Company, our principal operating subsidiary.
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We are subject to the information requirements of the Securities Exchange Act of 1934, as amended, referred to
as the Exchange Act, which means that we are required to file annual, quarterly and current reports, proxy statements and other information with the SEC, all of which are available at the Public Reference Room of the SEC at 100 F Street, NE, Washington
D.C. 20549. You may also obtain copies of these reports, proxy statements and other information from the Public Reference Room of the SEC, at prescribed rates, by calling 1-800-SEC-0330. The SEC maintains an Internet website at http://www.sec.gov where
you can access reports, proxy statements, information and registration statements, and other information regarding us that we file electronically with the SEC. In addition, we make available, without charge, through our website,
www.kingstonecompanies.com, electronic copies of various filings with the SEC, including copies of Annual Reports on Form 10-K. Information on our website should not be considered a part of this prospectus, and we do not intend to incorporate in this
prospectus any information contained on our website. Our subsidiary, Kingstone Insurance Company, also has a website at www.kingstoneinsurance.com. The information on that website likewise is not and should not be considered part of this prospectus and
is not incorporated in this prospectus by reference.
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can
disclose important information to you by referring to those documents filed separately with the SEC. The information we incorporate by reference is an important part of this prospectus. We incorporate by reference the documents listed below, except to
the extent that any information contained in those documents is deemed “furnished” in accordance with SEC rules.
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Our Annual Report on Form 10-K for the year ended December
31, 2023;
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The description of our common stock contained in our Registration Statement on Form 8-A (File No. 0-15362).
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We also incorporate by reference additional documents that we will file with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering under this prospectus. Those documents include periodic reports such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well
as proxy statements on Schedule DEF 14A.
Any statement contained in a document that is incorporated by reference will be modified or superseded for all
purposes to the extent that a statement contained in this prospectus, any prospectus supplement or any free writing prospectus that we authorize for use in connection with this offering modifies or is contrary to that previous statement. Any statement
so modified or superseded will not be deemed a part of this prospectus or any prospectus supplement except as so modified or superseded.
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Documents which we incorporate by reference are available from us without charge, excluding all exhibits, unless
we have specifically incorporated by reference an exhibit in this prospectus. You may obtain documents incorporated by reference in this prospectus by requesting them in writing or by telephone from us at:
Kingstone Companies, Inc.
15 Joys Lane
Kingston, New York 12401
(845) 802-7900
Attention: Secretary
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An investment in our securities involves a high degree of risk. Prior to making a decision
about investing in our securities, you should consider carefully the specific risk factors discussed in Item 1A (Risk Factors) of our most recent Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the SEC, and which is
incorporated in this prospectus by reference in its entirety, as well as any amendment or updates to our risk factors reflected in subsequent filings with the SEC, including any prospectus supplement hereto. These risks and uncertainties are not the
only risks and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any
additional risks and uncertainties actually occur, our business, financial condition, results of operations and cash flow could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose all
or part of your investment. Please also refer to the section below entitled “Special Cautionary Note Regarding Forward-Looking Statements.”
Some of the statements in or incorporated by reference into this prospectus contain “forward-looking statements.” Forward-looking statements are
made based on our management’s expectations and beliefs concerning future events impacting our company and are subject to uncertainties and factors relating to our operations and economic environment, all of which are difficult to predict and many of
which are beyond our control. You can identify these statements from our use of the words “estimate,” “project,” “believe,” “intend,” “anticipate,” “expect,” “target,” “plan,” “may” and similar expressions. These forward-looking statements may
include, among other things:
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statements relating to projected growth and management’s long-term performance goals;
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statements relating to the anticipated effects on results of operations or our financial condition from expected developments or events;
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statements relating to our business and growth strategies; and
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any other statements which are not historical facts.
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Forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause our actual results,
performance or achievements, or industry results, to differ materially from our expectations of future results, performance or achievements expressed or implied by these forward-looking statements. These forward-looking statements may not be realized
due to a variety of factors, including without limitation:
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the risk of significant losses from catastrophes and severe weather events;
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risks related to the lack of a financial strength rating from A.M. Best;
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risks related to our indebtedness due on December 30, 2024, including due to the failure to comply with certain financial covenants;
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the risk that we may be unable to generate sufficient cash to service our debt obligations, including the indebtedness due on December 30, 2024, which may affect
our ability to continue as a going concern;
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adverse capital, credit and financial market conditions;
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the unavailability of reinsurance at current levels and prices;
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the exposure to greater net insurance losses in the event of reduced reliance on reinsurance;
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the credit risk of our reinsurers;
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the inability to maintain the requisite amount of risk-based capital needed to grow our business;
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the effects of climate change on the frequency or severity of weather events and wildfires;
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risks related to the limited market area of our business;
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risks related to a concentration of business in a limited number of producers;
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legislative and regulatory changes, including changes in insurance laws and regulations and their application by our regulators;
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limitations with regard to our ability to pay dividends;
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the effects of competition in our market areas;
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our reliance on certain key personnel;
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risks related to security breaches or other attacks involving our computer systems or those of our vendors;
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our reliance on information technology and information systems; and
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other factors and risks referred to under “Risk Factors” on page 4 of this prospectus.
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You should not place undue reliance on any forward-looking statement. These risks and uncertainties should be
considered in evaluating any forward-looking statement contained or incorporated by reference in this prospectus. All forward-looking statements speak only as of the date of this prospectus or, in the case of any document incorporated by reference,
the date of that document. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are qualified by the cautionary statements in this section. We undertake no obligation to update any
forward-looking statement to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. In addition, our past results are not necessarily indicative of our future results.
We are a northeast regional property and casualty insurance holding company whose principal operating subsidiary
is Kingstone Insurance Company (“KICO”). KICO is a New York domiciled carrier writing business through retail and wholesale agents and brokers. KICO is actively writing personal lines and commercial auto insurance in New York, and in 2022 was the 15th
largest writer of homeowners insurance in New York. KICO is also licensed in New Jersey, Rhode Island, Massachusetts, Connecticut, Pennsylvania, New Hampshire, and Maine.
Our headquarters are located at 15 Joys Lane, Kingston, New York 12401. Our telephone number is (845) 802-7900. Our subsidiary,
Kingstone Insurance Company, has a website at www.kingstoneinsurance.com and we maintain certain information on our website at www.kingstonecompanies.com. The information on those websites should not be considered part of this prospectus and is not
incorporated in this prospectus by reference.
Unless we indicate a different use in an accompanying prospectus supplement, the net proceeds from our sale of
the offered securities will be used to repay indebtedness and for general corporate purposes.
The applicable prospectus supplement will provide more details on the use of proceeds of any specific offering.
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This prospectus contains summary descriptions of the common stock, preferred stock, warrants, debt securities
and units that we may offer from time to time. These summary descriptions do not purport to be complete and are subject to, and qualified in their entirety by reference to, the more complete descriptions thereof set forth in our restated certificate
of incorporation, which we refer to as our charter, and our bylaws, each as amended to date. The applicable prospectus supplement may add, update or change the terms and conditions of the securities as described in this prospectus.
Authorization
Our authorized capital stock consists of 22,500,000 shares of capital stock. We are authorized to issue
20,000,000 shares of common stock, par value $.01 per share, and 2,500,000 shares of preferred stock, par value $.01 per share.
As of April 4, 2024, there were 11,007,824 shares of common stock issued and outstanding and no shares of
preferred stock issued and outstanding.
Common Stock
Dividend
Rights. Subject to preferences that may be applicable to any shares of our preferred stock that may be issued, the holders of our common stock are entitled to share ratably in such dividends as may be declared
by our board of directors out of funds legally available therefor.
As a Delaware corporation, we may not declare and pay dividends on our capital stock if the amount paid exceeds
an amount equal to the surplus which represents the excess of our net assets over paid-in capital or, if there is no surplus, our net earnings for the current and/or immediately preceding fiscal year. Dividends cannot be paid from our net profits
unless the paid-in capital represented by the issued and outstanding stock having a preference upon the distribution of our assets at the market value is intact. Under applicable Delaware case law, dividends may not be paid on our capital stock if we
become insolvent or the payment of the dividend will render us insolvent. To the extent we pay dividends and we are deemed to be insolvent or inadequately capitalized, a bankruptcy court could direct the return of any dividends.
Our ability to pay cash dividends to our shareholders is also primarily dependent upon the cash dividends
received from our subsidiary, KICO. See “As a holding company, we are dependent on the results of operations of our subsidiary, KICO; there are restrictions on payments of dividends by KICO” in Item 1A (Risk Factors) and Item 5 (Market for
Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities-Dividends) of our most recent Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the SEC, and which is incorporated herein by
reference. In addition, we are not permitted to pay any cash dividends without the approval of the holders of a majority of the outstanding principal amount of the outstanding promissory notes due on December 30, 2024.
Voting Rights.
Each share of our common stock entitles its holder to one vote in the election of directors as well as all other matters to be voted on by shareholders. Holders of our common stock are entitled to cumulate their
votes in the election of directors. This means that each shareholder has the right to cumulate his votes and give to one or more nominees as many votes as equals the number of directors to be elected multiplied by the number of shares he is entitled
to vote. A shareholder may therefore cast his votes for one nominee or distribute them among two or more of the nominees.
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No Preemptive
Rights. Holders of our common stock do not have any preemptive rights to subscribe for additional shares on a pro rata basis or otherwise when additional shares are offered for sale by us.
Liquidation
Rights. Subject to preferences that may be applicable to any shares of our preferred stock that may be issued, in the event of our liquidation, dissolution or winding up, the holders of our common stock are
entitled to receive, pro rata, after payment of all of our debts and liabilities, all of our remaining assets available for distribution. In the event of any liquidation, dissolution or winding up of any subsidiary, the holding company, as the sole
shareholder of the subsidiary’s common stock, would be entitled to receive all remaining assets of that subsidiary available for distribution in cash or in kind after payment of all debts and liabilities of the subsidiary.
Other Rights. Holders of our common stock have no preferences or conversion or exchange rights. Shares of our common stock will not be liable for further calls or assessments by us and are not subject to redemption. The holders of our
common stock will not be liable for any of our liabilities.
Preferred Stock
Our board of directors has the authority, without further action by our shareholders, to issue from time to time
the authorized preferred stock in one or more series, and to fix the number of shares, designations, preferences, powers, and other rights and qualifications, limitations or restrictions as our board of directors may authorize, including:
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the distinctive designation of each series and the number of shares that will constitute the series;
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the voting rights, if any, of shares of the series and the terms and conditions of the voting rights;
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the dividend rate on the shares of the series, the dates on which dividends are payable, any restriction, limitation or condition upon the payment of dividends,
whether dividends will be cumulative, and the dates from and after which dividends shall accumulate;
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the prices at which, and the terms and conditions on which, the shares of the series may be redeemed, if the shares are redeemable;
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the terms and conditions of a sinking or purchase fund for the purchase or redemption of shares of the series, if such a fund is provided;
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any preferential amount payable upon shares of the series in the event of our liquidation, dissolution or winding up, or upon the distribution of any of our
assets; and
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the prices or rates of conversion or exchange at which, and the terms and conditions on which, the shares of the series may be converted or
exchanged into other securities, if the shares are convertible or exchangeable.
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Depending upon the rights prescribed for a series of preferred stock, the issuance of preferred stock could have
an adverse effect on the voting power of the holders of common stock and could adversely affect holders of common stock by delaying or preventing a change in control, making removal of our present management more difficult or imposing restrictions upon
the payment of dividends and other distributions to the holders of common stock.
The particular terms of any series of preferred stock, and the transfer agent and registrar for that series,
will be described in a prospectus supplement.
Warrants
We may offer to sell warrants from time to time. If we do so, we will describe the specific terms of the warrants in a prospectus
supplement. In particular, we may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may also issue warrants independently or together with other securities and the warrants may be attached
to or separate from those securities.
We will evidence each series of warrants by warrant certificates that we will issue under a separate agreement. We will enter into
the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each
such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and
the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case
may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the
warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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certain United States federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific material terms, preferences, rights or limitations of or restrictions on the warrants.
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Debt Securities
The following is a description of the material features, terms and provisions of debt securities that we may offer. This summary does
not purport to be exhaustive and may not contain all the information that is important to you. Therefore, you should read the applicable prospectus supplement relating to those debt securities and any other offering materials that we may provide.
We may issue debt securities from time to time in one or more series. We may issue senior debt securities or subordinated debt
securities under separate indentures, which may be supplemented or amended from time to time. Senior debt securities would be issued under a senior indenture and subordinated debt securities would be issued under a subordinated indenture. The senior
debt indenture and subordinated debt indenture are referred to individually in this prospectus as the indenture, and collectively as the indentures.
The particular terms of a series of debt securities will be described in a prospectus supplement relating to such series of debt
securities. The indentures will be subject to and governed by the Trust Indenture Act of 1939, as amended, and may be supplemented or amended from time to time following their execution. Unless otherwise stated in the applicable prospectus supplement,
we will not be limited in the amount of debt securities that we may issue and neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. Thus, by owning debt securities, you are one of our
unsecured creditors.
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We are a holding company and conduct substantially all of our operations through our subsidiary, KICO. As a result, claims of holders
of debt securities will generally have a junior position to claims of creditors of KICO. In addition, our right to participate as a shareholder in any distribution of assets of KICO (and thus the ability of holders of debt securities to benefit from
such distribution as our creditors) is junior to creditors of KICO.
The indentures, and any supplemental indentures, will contain the full legal text of the matters described in this section of the
prospectus. Because this section is a summary, it does not describe every aspect of the debt securities or any applicable indentures or supplemental indenture. This summary is therefore subject to and is qualified in its entirety by reference to all
the provisions of any applicable indenture or supplemental indenture, including any definitions of terms used in such indenture. Your rights will be defined by the terms of any applicable indenture or supplemental indenture, not the summary provided
herein. This summary is also subject to and qualified by reference to the description of the particular terms of a particular series of debt securities described in the applicable prospectus supplement or supplements.
The debt securities may be denominated and payable in U.S. dollars. We may also issue debt securities, from time to time, with the
principal amount, interest or other amounts payable on any relevant payment date to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices, indices or any other financial, economic or
other measure or instrument, including the occurrence or non-occurrence of any event or circumstance. In addition, we may issue debt securities as part of any units issued by us. All references in this prospectus or any prospectus supplement to other
amounts will include premiums, if any, other cash amounts payable under the applicable indenture, and the delivery of securities or baskets of securities under the terms of the debt securities. Debt securities may bear interest at a fixed rate, which
may be zero, or a floating rate.
We will set forth in the applicable prospectus supplement the terms, if any, on which a series of debt securities may be convertible
into or exchangeable for our preferred stock, common stock or 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 shares of our preferred stock, common stock or other securities that holders of the series of debt securities receive would be subject to adjustment.
The applicable prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt
securities. The description will, to the extent applicable, include:
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the title and form of the debt securities;
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the ranking of the debt securities as compared to other debt;
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the aggregate principal amount of the debt securities or the series of which they are a part;
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the person or persons to whom any principal or interest on a debt security of the series will be paid;
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the date or dates on which we must repay the principal;
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the rate or rates at which the debt securities will bear interest;
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the date or dates from which interest will accrue, and the dates on which we must pay interest;
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the place or places where we must pay the principal and any premium or interest on the debt securities;
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the terms and conditions on which the debt securities may be convertible into other securities;
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whether the debt securities are entitled to the benefit of any sinking fund;
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the identity of the trustee;
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the terms and conditions on which we may redeem any debt security, if at all;
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any obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so;
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the denominations in which we may issue the debt securities;
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the manner in which we will determine the amount of principal of or any premium or interest on the debt securities;
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the currency in which we will pay the principal of and any premium or interest on the debt securities;
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the principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity;
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the amount that will be deemed to be the principal amount for any purpose, including the principal amount that will be due and payable upon
any maturity or that will be deemed to be outstanding as of any date;
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whether the debt securities are defeasible and the terms of such defeasance; and
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any addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities due and payable.
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Some of the debt securities may be issued as original issue discount debt securities. Original issue discount securities bear no
interest or bear interest at below market rates and will be sold at a discount below their stated principal amount. A prospectus supplement relating to an issue of original issue discount securities will contain information relating to United States
federal income tax, accounting, and other special considerations applicable to original issue discount securities.
11
Units
We may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in any
combination. Each unit will be issued so that the holder of the unit is also the holder, with 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 times before a specified date or upon the occurrence of a specified event or occurrence.
The applicable prospectus supplement will describe:
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the designation and the 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 unit agreement under which the units will be issued;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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whether the units will be issued in fully registered or global form.
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Certain Provisions Having Potential Anti-Takeover Effects
General. The following is a summary of the material provisions of the General Corporation Law of the State of Delaware, which we refer to as the DGCL, and our charter and bylaws that address matters of corporate governance and the
rights of shareholders. Certain of these provisions may delay or prevent takeover attempts not first approved by our board of directors (including takeovers which certain shareholders may deem to be in their best interests). These provisions also
could delay or frustrate the removal of incumbent directors or the assumption of control by shareholders. The primary purpose of these provisions is to encourage negotiations with our management by persons interested in acquiring control of our
company. All references to the charter and bylaws are to our charter and bylaws in effect on the date of this prospectus.
Filling
Vacancies. Vacancies occurring in our board of directors and newly created directorships resulting from an increase in the authorized number of directors may be filled by a majority of the remaining directors,
even if less than a quorum.
Amendment of
Bylaws. Subject to certain restrictions described below, either our board of directors or our shareholders may amend or repeal our bylaws.
Special
Meetings of Shareholders. Our bylaws provide that special meetings of shareholders may be called only by a majority of our board of directors.
12
Authorized But
Unissued Shares. Delaware law does not require shareholder approval for any issuance of authorized shares. Authorized but unissued shares may be used for a variety of corporate purposes, including future
public or private offerings to raise additional capital or to facilitate corporate acquisitions. One of the effects of the existence of authorized but unissued shares may be to enable our board of directors to issue shares to persons friendly to
current management, which issuance could render more difficult or discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive
the shareholders of opportunities to sell their shares of common stock at prices higher than prevailing market prices.
Preferred Stock. Under the terms of our charter, our board of directors is authorized to issue shares of preferred stock in one or more series without shareholder approval. Our board of directors has the discretion to determine the
rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. The purpose of authorizing our board of directors to
issue preferred stock and determine its rights and preferences is to provide flexibility and eliminate delays associated with a shareholder vote on specific issues. However, the ability of our board of directors to issue preferred stock and determine
its rights and preferences may have the effect of delaying or preventing a change in control, as described above under “Description of Securities We May Offer — Preferred Stock.”
Advance
Notification of Shareholder Nominations and Proposals. Our bylaws establish advance notice procedures with respect to the nomination of persons for election as directors, other than nominations made by or at
the direction of our board of directors, and shareholder proposals for business.
Shareholder
Nominees. In order for a shareholder to nominate a candidate for director, under our bylaws, timely notice of the nomination must be received by us in advance of the meeting. To be timely, the notice must be
received at our principal executive offices not less than 60 days nor more than 90 days prior to the meeting; however, if less than 70 days’ notice of the date of the meeting is given to shareholders and public disclosure of the meeting date,
pursuant to a press release, is either not made at all or is made less than 70 days prior to the meeting date, notice by a shareholder to be timely made must be so received no later than the close of business on the tenth day following the earlier of
the following:
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the day on which the notice of the date of the meeting was made available to shareholders, or
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the day on which such public disclosure of the meeting date was made.
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The shareholder sending the notice of nomination must describe various matters, including such information as:
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the name, age, business and residence addresses, occupation or employment and shares held by the nominee;
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any other information relating to such nominee required to be disclosed in a proxy statement; and
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the name, address and number of shares held by the shareholder.
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Shareholder
Proposals. In order for a shareholder to make a proposal at an annual meeting of shareholders, under our bylaws, timely notice must be received by us in advance of the meeting. To be timely, the proposal must be received by our Secretary at
our principal executive offices on a date which is not less than 60 days nor more than 90 days prior to the date which is one year from the date of the mailing of the notice regarding the availability of proxy materials for the prior year’s annual
meeting of shareholders. If during the prior year we did not hold an annual meeting, or if the date of the meeting for which a shareholder intends to submit a proposal has changed more than 30 days from the date of the meeting in the prior year, then
the notice must be received a reasonable time before we mail the notice regarding the availability of proxy materials for the current year. A shareholder’s notice must set forth as to each matter the shareholder proposes to bring before the annual
meeting certain information regarding the proposal, including the following:
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a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at such meeting;
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the name and address of the shareholder proposing such business;
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the class and number of our shares which are beneficially owned by such shareholder; and
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any material interest of such shareholder in such business.
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Statutory and
other Restrictions on Acquisition of our Capital Stock. We are subject to Section 203 of the DGCL, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any business
combination with an interested shareholder, unless:
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prior to the time of the proposed action, the board of directors of the corporation approved either the business combination or the transaction
that resulted in the shareholder becoming an interested shareholder;
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upon completion of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at
least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (i) by persons who are directors and also officers and
(ii) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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at or subsequent to the time of the proposed action, the business combination is approved by the board of directors and authorized at an annual
or special meeting of shareholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested shareholder.
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These provisions are intended to enhance the likelihood of continuity and stability in the composition of the
board and in policies formulated by the board and to discourage certain types of transactions that may involve an actual or threatened change of control of our company. These provisions are designed to reduce our vulnerability to an unsolicited
proposal for a takeover that does not contemplate the acquisition of all of our outstanding shares or an unsolicited proposal for the restructuring or sale of all or part of our company.
14
Limitations on Director Liability
Our charter provides that our directors shall generally not be liable to us or any of our shareholders for
monetary damages for breach of duty as a director. This provision will eliminate such liability except for (i) any breach of the director’s duty of loyalty to us or to our shareholders, (ii) acts and omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) liability for unlawful payment of dividends or unlawful stock purchases or redemptions in violation of the DGCL, and (iv) any transaction from which the director derived an improper personal
benefit.
Indemnification of Directors and Officers
Section 145 of the DGCL empowers a Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or other enterprise. A corporation may indemnify such
person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. A corporation may, in advance of
the final disposition of any civil, criminal, administrative or investigative action, suit or proceeding, pay the expenses (including attorneys’ fees) incurred by any officer or director in defending such action, provided that the officer or director
undertakes to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation
to procure a judgment in its favor under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which he or she actually and reasonably incurred in connection therewith. The
indemnification provided by the DGCL is not deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any corporation’s bylaws, agreement, vote or otherwise.
Our bylaws provide that we will to the fullest extent permitted by Section 145 of the DGCL indemnify all persons
whom we may indemnify pursuant thereto.
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons under the provisions discussed above or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
15
Transfer Agent
The transfer agent for our common stock is Equiniti Trust Company, LLC.
We may use this prospectus, any applicable prospectus supplement and any related free writing prospectus that we
authorize for use in connection with this offering to sell our securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell our securities (1) through one
or more underwriters or dealers, (2) through one or more agents, and/or (3) directly to one or more purchasers. We may distribute our securities from time to time in one or more transactions at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices;
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varying prices determined at the time of sale; or
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negotiated prices.
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We may solicit directly offers to purchase the securities being offered by this prospectus. We may also
designate agents to solicit offers to purchase our securities from time to time. We will name in a prospectus supplement any underwriter, dealer or agent involved in the offer or sale of our securities and describe any commissions payable by us to
these agents in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, these agents will be acting on a best efforts basis for the period of their appointment. The agents may be customers of, or may
engage in transactions with or perform services for, us in the ordinary course of business.
We may also sell equity securities covered by this registration statement in an “at the market” offering as defined in Rule 415(a)(4)
under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price on or through the facilities of the Nasdaq Capital Market or any other securities exchange or quotation
or trading service on which such securities may be listed, quoted or traded at the time of sale. Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent.
If we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell our
securities to the dealer, as principal. The dealer may then resell our 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 our 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 our securities to the public. In connection with the sale of
our securities, we, or the purchasers of our 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 our securities to or through dealers, and
the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
16
With respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the
applicable prospectus supplement any compensation we pay to underwriters, dealers or agents in connection with the offering of our securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters,
dealers and agents participating in the distribution of our 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 our
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.
Our common stock is listed for trading on the NASDAQ Capital Market. We may elect to list any other security we offer on an
exchange, but we are not obligated to do so. To facilitate the offering of our securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. This may
include over-allotments or short sales of our 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 our securities by bidding for or purchasing our securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if 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 our 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.
In order to comply with the securities laws of certain states, if applicable, the securities offered by this
prospectus may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states, the securities offered by this prospectus may not be sold unless such securities have been registered or qualified
for sale in these states or an exemption from registration or qualification is available.
Except as otherwise provided in any prospectus supplement, the validity of the issuance of the securities to be
offered by this prospectus will be passed upon for us by Certilman Balin Adler & Hyman, LLP, East Meadow, New York. As of April 4, 2024, members of Certilman Balin Adler & Hyman, LLP beneficially owned 30,968 shares of our common stock. If
legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel for underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
17
Our consolidated financial statements as of December 31, 2023 and 2022 for the years then ended appearing in our
Annual Report on Form 10-K for the year ended December 31, 2023 have been incorporated by reference in this prospectus in reliance upon the report of Marcum LLP, an independent registered public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
18
KINGSTONE COMPANIES, INC.
$50,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses to be incurred by the Registrant in connection with the
issuance and distribution of the securities being offered hereby. With the exception of the Securities and Exchange Commission registration fee, all fees and expenses set forth below are estimates.
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Amount
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Securities and Exchange Commission registration fee
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$
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7,380
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Printing expenses
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*
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Miscellaneous expenses (including amounts paid to FINRA, Nasdaq and the transfer agent)
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*
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Total
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$
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*
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___________________________
*These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this time.
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Item 15.
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Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) empowers a Delaware corporation
to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or
other enterprise. A corporation may indemnify such person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding
if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. A corporation may, in advance of the final disposition of any civil, criminal, administrative or investigative action, suit or proceeding, pay the expenses (including attorneys’ fees) incurred by any officer or director in
defending such action, provided that the officer or director undertakes to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation
to procure a judgment in its favor under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which he or she actually and reasonably incurred in connection therewith. The
indemnification provided by the DGCL is not deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any corporation’s bylaws, agreement, vote or otherwise.
II-1
The registrant’s bylaws provide that the registrant will to the fullest extent permitted by Section 145 of the
DGCL indemnify all persons whom it may indemnify pursuant thereto.
The form of Underwriting Agreement included as an exhibit to this registration statement, if applicable,
provides for indemnification by the underwriter of the registrant and its officers and directors against certain liabilities.
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to the registrant’s directors, officers and controlling persons under the provisions discussed above or otherwise, the registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
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Item 16.
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Exhibits.
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(a)
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The following exhibits are filed as part of this registration statement:
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Exhibit No.
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__________
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* Filed herewith.
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Item 17.
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Undertakings.
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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;
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(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i), (ii) and (iii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) if the registrant is relying on Rule 430B:
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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
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(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
II-3
(ii) if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
|
1)
|
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in 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.
|
|
2)
|
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Kingston, State of New York, on April 5, 2024.
|
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KINGSTONE COMPANIES, INC.
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|
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By:
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/s/ Meryl S. Golden
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Meryl S. Golden
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Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints, jointly and
severally, Meryl S. Golden, Barry B. Goldstein and Jennifer L. Gravelle, and each of them, as his or her attorney-in-fact, with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration
statement (including post-effective amendments), and any and all registration statements filed pursuant to Rule 462 under the Securities Act in connection with or related to the offering contemplated by this registration statement and its amendments,
if any, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to any and all
amendments to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this Form S-3 has been signed by the following persons in the capacities
and on the dates indicated.
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Signature
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Title
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Date
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/s/ Meryl S. Golden
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Chief Executive Officer, President and Director (Principal Executive Officer)
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April 5, 2024
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||
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Meryl S. Golden
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/s/ Barry B. Goldstein
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Executive Chairman of the Board
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April 5, 2024
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Barry B. Goldstein
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||
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/s/ Jennifer L. Gravelle
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Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)
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April 5, 2024
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Jennifer L. Gravelle
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/s/ Floyd R. Tupper
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Secretary and Director
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April 5, 2024
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Floyd R. Tupper
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/s/ Timothy P. McFadden
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Director (Lead Independent Director)
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April 5, 2024
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||
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Timothy P. McFadden
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||||
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/s/ William L. Yankus
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Director
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April 5, 2024
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||
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William L. Yankus
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||||
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/s/ Carla A. D’Andre
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Director
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April 5, 2024
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||
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Carla A. D’Andre
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Exhibit 4.1
KINGSTONE COMPANIES, INC.
TO
,
TRUSTEE
FORM OF INDENTURE
Dated as of
Debt Securities
CROSS REFERENCE SHEET
Between
Provisions of Sections 310 through 318(a) inclusive of the Trust Indenture Act of 1939 and the Indenture dated as of
, between Kingstone Companies, Inc. and , as trustee.
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Section of Act
|
|
Section of Indenture
|
|
310(a)(1) and (2)
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8.09
|
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310(a)(3) and (4)
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|
*
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|
310(b)
|
|
8.08 and 8.10
|
|
310(c)
|
|
*
|
|
311(a)
|
|
8.13
|
|
311(b)
|
|
8.13
|
|
311(c)
|
|
*
|
|
312(a)
|
|
6.01 and
6.02(a) |
|
312(b)
|
|
6.02(b)
|
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312(c)
|
|
6.02(c)
|
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313(a)(1), (2), (3), (4), (6) and (7)
|
|
6.04(a)
|
|
313(a)(5)
|
|
*
|
|
313(b)(1)
|
|
*
|
|
313(b)(2)
|
|
6.04
|
|
313(c)
|
|
6.04
|
|
313(d)
|
|
6.04
|
|
314(a)(1)
|
|
6.03
|
|
314(a)(2)
|
|
6.03
|
|
314(a)(3)
|
|
6.03
|
|
314(b)
|
|
*
|
|
314(c)(1)
|
|
5.05
|
|
314(c)(2)
|
|
15.05
|
|
314(c)(3)
|
|
*
|
|
314(d)
|
|
*
|
|
314(e)
|
|
15.05
|
|
314(f)
|
|
*
|
|
315(a), (c) and (d)
|
|
8.01
|
|
315(b)
|
|
7.08
|
|
315(e)
|
|
7.09
|
|
316(a)(1)
|
|
7.07
|
|
316(a)(2)
|
|
*
|
|
316(a) last para.
|
|
9.03
|
|
316(b)
|
|
7.10
|
|
317(a)
|
|
7.02
|
|
317(b)
|
|
5.04
|
|
318(a)
|
|
15.07
|
|
*
|
Not Applicable.
|
This cross reference sheet shall not, for any purpose, be considered part of the Indenture.
TABLE OF CONTENTS
|
|
|
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|
Page
|
|
|
|
ARTICLE 1 DEFINITIONS
|
|
|
1
|
|
||
|
Section 1.01
|
|
Definitions
|
|
|
1
|
|
|
ARTICLE 2 DEBT SECURITY FORMS
|
|
|
7
|
|
||
|
Section 2.01
|
|
Forms Generally
|
|
|
7
|
|
|
Section 2.02
|
|
Forms of Debt Securities
|
|
|
7
|
|
|
Section 2.03
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
7
|
|
|
Section 2.04
|
|
Debt Securities in Global Form
|
|
|
8
|
|
|
ARTICLE 3 THE DEBT SECURITIES
|
|
|
9
|
|
||
|
Section 3.01
|
|
Title and Terms
|
|
|
9
|
|
|
Section 3.02
|
|
Denominations
|
|
|
12
|
|
|
Section 3.03
|
|
Payment of Principal and Interest
|
|
|
12
|
|
|
Section 3.04
|
|
Execution of Debt Securities
|
|
|
12
|
|
|
Section 3.05
|
|
Temporary Debt Securities
|
|
|
14
|
|
|
Section 3.06
|
|
Exchange and Registration of Transfer of Debt Securities
|
|
|
14
|
|
|
Section 3.07
|
|
Mutilated, Destroyed, Lost or Stolen Debt Securities
|
|
|
15
|
|
|
Section 3.08
|
|
Payment of Interest; Interest Rights Preserved
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|
|
16
|
|
|
Section 3.09
|
|
Persons Deemed Owners
|
|
|
17
|
|
|
Section 3.10
|
|
Cancellation of Debt Securities Paid
|
|
|
17
|
|
|
Section 3.11
|
|
Currency and Manner of Payments
|
|
|
18
|
|
|
Section 3.12
|
|
CUSIP Numbers
|
|
|
19
|
|
|
ARTICLE 4 REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
|
|
|
19
|
|
||
|
Section 4.01
|
|
Applicability of Article
|
|
|
19
|
|
|
Section 4.02
|
|
Notice of Redemption; Selection of Debt Securities
|
|
|
20
|
|
|
Section 4.03
|
|
Payment of Debt Securities Called for Redemption
|
|
|
21
|
|
|
Section 4.04
|
|
Exclusion of Certain Debt Securities from Eligibility for Selection for Redemption
|
|
|
22
|
|
|
Section 4.05
|
|
Provisions with Respect to any Sinking Funds
|
|
|
22
|
|
|
ARTICLE 5 PARTICULAR COVENANTS OF THE COMPANY
|
|
|
24
|
|
||
|
Section 5.01
|
|
Payment of Principal, Premium and Interest
|
|
|
24
|
|
|
Section 5.02
|
|
Offices for Notices and Payments
|
|
|
24
|
|
i
TABLE OF CONTENTS
(continued)
|
|
|
|
|
Page
|
|
|
|
Section 5.03
|
|
Appointments to Fill Vacancies in Trustee’s Office
|
|
|
24
|
|
|
Section 5.04
|
|
Provisions as to Paying Agent
|
|
|
24
|
|
|
Section 5.05
|
|
Certificate to Trustee
|
|
|
25
|
|
|
Section 5.06
|
|
Waivers of Covenants
|
|
|
25
|
|
|
ARTICLE 6 HOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
|
|
26
|
|
||
|
Section 6.01
|
|
Holders’ Lists
|
|
|
26
|
|
|
Section 6.02
|
|
Preservation and Disclosure of Lists
|
|
|
26
|
|
|
Section 6.03
|
|
Reports by the Company
|
|
|
26
|
|
|
Section 6.04
|
|
Reports by the Trustee
|
|
|
27
|
|
|
ARTICLE 7 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
|
|
|
27
|
|
||
|
Section 7.01
|
|
Events of Default
|
|
|
27
|
|
|
Section 7.02
|
|
Payment of Debt Securities Upon Default; Suit Therefor
|
|
|
30
|
|
|
Section 7.03
|
|
Application of Moneys Collected by Trustee
|
|
|
32
|
|
|
Section 7.04
|
|
Proceedings by Holders
|
|
|
32
|
|
|
Section 7.05
|
|
Proceedings by Trustee
|
|
|
33
|
|
|
Section 7.06
|
|
Remedies Cumulative and Continuing
|
|
|
33
|
|
|
Section 7.07
|
|
Direction of Proceedings and Waiver of Defaults by Majority of Holders
|
|
|
33
|
|
|
Section 7.08
|
|
Notice of Defaults
|
|
|
34
|
|
|
Section 7.09
|
|
Undertaking to Pay Costs
|
|
|
34
|
|
|
Section 7.10
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
34
|
|
|
ARTICLE 8 CONCERNING THE TRUSTEE
|
|
|
35
|
|
||
|
Section 8.01
|
|
Duties and Responsibilities of Trustee
|
|
|
35
|
|
|
Section 8.02
|
|
Reliance on Documents, Opinions
|
|
|
36
|
|
|
Section 8.03
|
|
No Responsibility for Recitals
|
|
|
37
|
|
|
Section 8.04
|
|
Trustee and Agents May Own Debt Securities
|
|
|
37
|
|
|
Section 8.05
|
|
Moneys to be Held in Trust
|
|
|
38
|
|
|
Section 8.06
|
|
Compensation and Expenses of Trustee
|
|
|
38
|
|
ii
TABLE OF CONTENTS
(continued)
|
|
|
|
|
Page
|
|
|
|
Section 8.07
|
|
Officers’ Certificate as Evidence
|
|
|
39
|
|
|
Section 8.08
|
|
Conflicting Interest of Trustee
|
|
|
39
|
|
|
Section 8.09
|
|
Eligibility of Trustee
|
|
|
39
|
|
|
Section 8.10
|
|
Resignation or Removal of Trustee
|
|
|
39
|
|
|
Section 8.11
|
|
Acceptance by Successor Trustee
|
|
|
40
|
|
|
Section 8.12
|
|
Succession by Merger
|
|
|
41
|
|
|
Section 8.13
|
|
Limitation on Rights of Trustee as a Creditor
|
|
|
42
|
|
|
Section 8.14
|
|
Authenticating Agents
|
|
|
42
|
|
|
Section 8.15
|
|
Trustee’s Application for Instructions from the Company
|
|
|
44
|
|
|
ARTICLE 9 CONCERNING THE HOLDERS
|
|
|
45
|
|
||
|
Section 9.01
|
|
Action by Holders
|
|
|
45
|
|
|
Section 9.02
|
|
Proof of Execution by Holders
|
|
|
45
|
|
|
Section 9.03
|
|
Company-Owned Debt Securities Disregarded
|
|
|
45
|
|
|
Section 9.04
|
|
Revocation of Consents; Future Holders Bound
|
|
|
46
|
|
|
ARTICLE 10 HOLDERS’ MEETINGS
|
|
|
46
|
|
||
|
Section 10.01
|
|
Purposes of Meetings
|
|
|
46
|
|
|
Section 10.02
|
|
Call of Meetings by Trustee
|
|
|
47
|
|
|
Section 10.03
|
|
Call of Meetings by Company or Holders
|
|
|
47
|
|
|
Section 10.04
|
|
Qualifications for Voting
|
|
|
47
|
|
|
Section 10.05
|
|
Regulations
|
|
|
47
|
|
|
Section 10.06
|
|
Voting
|
|
|
48
|
|
|
Section 10.07
|
|
No Delay of Rights by Meeting
|
|
|
48
|
|
|
ARTICLE 11 SUPPLEMENTAL INDENTURES
|
|
|
49
|
|
||
|
Section 11.01
|
|
Supplemental Indentures without Consent of Holders
|
|
|
49
|
|
|
Section 11.02
|
|
Supplemental Indentures with Consent of Holders
|
|
|
50
|
|
|
Section 11.03
|
|
Effect of Supplemental Indentures
|
|
|
51
|
|
|
Section 11.04
|
|
Notation on Debt Securities
|
|
|
52
|
|
|
Section 11.05
|
|
Evidence of Compliance of Supplemental Indenture to be Furnished Trustee
|
|
|
52
|
|
iii
TABLE OF CONTENTS
(continued)
|
|
|
|
|
Page
|
|
|
|
ARTICLE 12 CONSOLIDATION, MERGER, SALE AND CONVEYANCE
|
|
|
52
|
|
||
|
Section 12.01
|
|
Company May Consolidate on Certain Terms
|
|
|
52
|
|
|
Section 12.02
|
|
Successor Entity to be Substituted
|
|
|
52
|
|
|
Section 12.03
|
|
Opinion of Counsel to Be Given to the Trustee
|
|
|
53
|
|
|
ARTICLE 13 SATISFACTION, DISCHARGE AND DEFEASANCE OF INDENTURE
|
|
|
53
|
|
||
|
Section 13.01
|
|
Satisfaction, Discharge and Legal Defeasance of Debt Securities of any Series
|
|
|
53
|
|
|
Section 13.02
|
|
Covenant Defeasance of Debt Securities of any Series
|
|
|
54
|
|
|
Section 13.03
|
|
Application of Trust Funds; Indemnification
|
|
|
56
|
|
|
Section 13.04
|
|
Return of Unclaimed Moneys
|
|
|
56
|
|
|
Section 13.05
|
|
Reinstatement
|
|
|
56
|
|
|
ARTICLE 14 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
|
|
57
|
|
||
|
Section 14.01
|
|
Indenture and Debt Securities Solely Obligations of the Company
|
|
|
57
|
|
|
ARTICLE 15 MISCELLANEOUS PROVISIONS
|
|
|
57
|
|
||
|
Section 15.01
|
|
Provisions Binding on Successors of the Company
|
|
|
57
|
|
|
Section 15.02
|
|
Indenture for Sole Benefit of Parties and Holders of Debt Securities
|
|
|
57
|
|
|
Section 15.03
|
|
Addresses for Notices
|
|
|
58
|
|
|
Section 15.04
|
|
Contract; Waiver of Trial by Jury
|
|
|
59
|
|
|
Section 15.05
|
|
Evidence of Compliance with Conditions Precedent
|
|
|
59
|
|
|
Section 15.06
|
|
Legal Holidays
|
|
|
59
|
|
|
Section 15.07
|
|
Trust Indenture Act of 1939 to Control
|
|
|
59
|
|
|
Section 15.08
|
|
Table of Contents, Headings
|
|
|
60
|
|
|
Section 15.09
|
|
Determination of Principal Amount
|
|
|
60
|
|
|
Section 15.10
|
|
Execution in Counterparts
|
|
|
60
|
|
iv
THIS INDENTURE, dated as of , between Kingstone Companies, Inc., a Delaware corporation (the “Company”), and , as trustee (the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issue from time to time
of its unsecured debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series as in this Indenture provided, up to such principal amount or amounts as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or acceptance of the Debt Securities by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of the respective Holders from time to time of the Debt Securities or of any series thereof as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.
The terms defined in this Section 1.01 (except as herein 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 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act shall have (except as herein otherwise expressly provided or unless the
context otherwise requires) the meanings assigned to such terms in said Trust Indenture Act of 1939 and in the Securities Act as in force at the date of the execution of this Indenture. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the United States for domestic companies at the date of such computation. All references to such terms herein shall be both to the singular or the plural, as the context so
requires. Unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this Indenture. The words “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. The words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation.”
(a) The term “Act”
has the meaning set forth in Section 9.01.
(b) The term “Affiliate”, when used
with respect to any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with
respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
(c) The term “Authenticating
Agent” means the agent of the Trustee, if any, which at the time shall be appointed and acting pursuant to Section 8.14.
(d) The term “Board of
Directors” means the Board of Directors of the Company or any authorized committee of such Board designated by the Board of Directors to act for such Board for purposes of this Indenture.
(e) The term “Board
Resolution” means a copy of a resolution certified by a Vice President, the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
(f) The term “Business
Day”, when used with respect to any Place of Payment or any other particular location, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions or trust companies in that Place of Payment or
other location are authorized or obligated by law, regulation or executive order to close.
(g) The term “Commission” means
the U.S. Securities and Exchange Commission.
(h) The term “Company” means
the party named as the “Company” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to
any subsequent successor or successors.
(i) The terms “Company
Request” and “Company Order” mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer or a Vice President, and by its Treasurer, Secretary, or Assistant Secretary, and delivered to the Trustee.
(j) The term “Conversion
Date” has the meaning set forth in Section 3.11.
(k) The term “Corporate
Trust Office” means the designated office of the Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date hereof is located at , Attention: Corporate Trust Administration unit, or
such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to
the Company).
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(l) The term “Currency Determination Agent”
means the financial institution, if any, from time to time selected by the Company for purposes of Section 3.11.
(m) The terms “Debt
Security” or “Debt Securities” means any notes, debentures or other indebtedness of any series, as the case may be, issued by the Company
from time to time, and authenticated and delivered under this Indenture.
(n) The term “Debt
Security Register” has the meaning set forth in Section 3.06.
(o) The term “Debt
Security Registrar” has the meaning set forth in Section 3.06.
(p) The term “Depository”
means, unless otherwise specified by the Company pursuant to Section 3.01, with respect to Debt Securities of any series issuable or issued as a Global Debt Security, The Depository Trust Company, New York, New York, or any successor thereto registered
as a clearing agency pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation.
(q) The term “Dollar”
means the coin or currency of the United States of America which as of the time of payment is legal tender for the payment of public and private debts.
(r) The term “Dollar
Equivalent of the Foreign Currency” has the meaning set forth in Section 3.11.
(s) The term “Event of
Default” has the meaning set forth in Section 7.01.
(t) The term “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(u) The term “Foreign
Currency” means a currency issued by the government of any country other than the United States of America.
(v) The term “Global Debt
Security” means a Debt Security issued in global form pursuant to Section 2.04 hereof to evidence all or part of a series of Debt Securities.
(w) The term “Government
Obligations” means securities which are (i) direct obligations of the government that issued the currency in which the Debt Securities of a series are denominated or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government that issued the currency in which the Debt Securities of such series are denominated, the payment of which obligations is unconditionally guaranteed by such government, and which, in either case, are full
faith and credit obligations of such government, are denominated in the currency in which the Debt Securities of such series are denominated and which are not callable or redeemable at the option of the issuer thereof.
(x) The term “Holder”
means any Person in whose name a Debt Security of any series is registered in the Debt Security Register applicable to Debt Securities of such series.
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(y) The term “Indenture” means this
instrument as originally executed and delivered or, if amended or supplemented as herein provided pursuant to the applicable provisions hereof, as so amended or supplemented.
(z) The term “Indexed
Debt Security” means a Debt Security, the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
(aa) The term “interest”,
when used with respect to an Original Issue Discount Debt Security that by its terms bears interest only after maturity, means interest payable after maturity.
(bb) The term “Interest
Payment Date”, when used with respect to any series of Debt Securities, means the Stated Maturity of an installment of interest on such Debt Securities.
(cc) The term “Market
Exchange Rate” has the meaning set forth in Section 3.11.
(dd) The term “Officers’
Certificate”, when used with respect to the Company, means a certificate signed by its Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or a Vice President and by its Treasurer, Secretary, or Assistant
Secretary, and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 15.05 to the extent required by the provisions of such Section.
(ee) The term “Opinion of
Counsel” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Company and who shall be reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for in
Sections 3.04, 11.05, 12.03, 13.01, 13.02 and 15.05 to the extent required by the provisions of such Sections.
(ff) The term “Original
Issue Discount Debt Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 7.01.
(gg) The term “Outstanding”,
when used with respect to Debt Securities or Debt Securities of any series, means, as of the date of determination, all such Debt Securities theretofore authenticated and delivered under this Indenture, except:
(1) such Debt Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) such Debt Securities for whose payment or redemption money in the necessary amount and in the specified currency has
been theretofore deposited with the Trustee or any paying agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own paying agent) for the Holders of such Debt Securities, provided,
however, that if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
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(3) such Debt Securities that have been paid pursuant to Section 3.07 or such Debt Securities in exchange for or in lieu of which other
such Debt Securities have been authenticated and delivered pursuant to this Indenture, unless proof satisfactory to the Trustee is presented that any such Debt Securities are held by Persons in whose hands any of such Debt Securities are a legal, valid
and binding obligation of the Company, and
(4) such Debt Securities the indebtedness in respect to which has been discharged in accordance with Section 13.01;
provided, however, that in determining
whether the Holders of the requisite principal amount of such Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, such Debt Securities owned by the Company or any other obligor upon
such Debt Securities or any Affiliate of the Company or such other obligor (except in the case in which the Company or such other obligor or Affiliate owns all Debt Securities Outstanding under the Indenture, or all Outstanding Debt Securities of each
such series, as the case may be, without regard to this proviso) shall be disregarded and deemed not to be Outstanding in the manner set forth in Section 9.03.
(hh) The term “Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.
(ii) The term “Place of
Payment”, when used with respect to the Debt Securities of any series, means the place or places where the principal of (premium, if any) and interest on the Debt Securities of that series are payable as specified in accordance with
Section 3.01.
(jj) The term “Predecessor
Debt Security” of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such particular Debt Security, and for the purposes of this definition, any Debt Security
authenticated and delivered under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Debt Security.
(kk) The term “Redemption
Date”, when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
(ll) The term “Redemption
Price”, when used with respect to any Debt Security to be redeemed, means the price specified in such Debt Security at which it is to be redeemed pursuant to this Indenture.
(mm) The term “Regular
Record Date” for the interest payable on any Debt Security on any Interest Payment Date means the date specified in such Debt Security as the “Regular Record Date” as contemplated by Section 3.01.
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(nn) The term “Responsible Officer”,
when used with respect to the Trustee, means any officer of the Trustee assigned to the Corporate Trust Administration unit (or any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct
responsibility for the administration of this Indenture and, for the purposes of Section 7.07, Section 7.08 and Section 8.01(c)(2), shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.
(oo) The term “Responsible
Officer”, when used with respect to the Company, means the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer, Treasurer or Secretary, any Vice President, or Assistant Secretary, in each case, of the Company.
(pp) The term “Securities
Act” means the Securities Act of 1933, as amended.
(qq) The term “Special
Record Date” for the payment of any Defaulted Interest (as defined in Section 3.08) means a date fixed by the Trustee pursuant to Section 3.08.
(rr) The term “Stated
Maturity” when used with respect to any Debt Security or any installment of principal thereof or of interest thereon, means the date specified in such Debt Security as the fixed date on which the principal of such Debt Security, or such
installment of interest, is due and payable.
(ss) The term “Subsidiary”
means any Person of which the Company, or the Company and one or more Subsidiaries, or any one or more Subsidiaries, directly or indirectly own more than 50% of the Voting Stock.
(tt) The term “Trustee”
means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of that series.
(uu) The term “Trust
Indenture Act of 1939” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act of 1939” means to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
(vv) The term “Voting
Stock” means outstanding shares of capital stock or similar equity interests having under ordinary circumstances voting power for the election of directors, managers or the substantial equivalent thereof, whether at all times or only so long
as no senior class of stock or similar equity interest has such voting power by reason of the happening of any contingency.
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ARTICLE 2
DEBT SECURITY FORMS
Section 2.01 Forms Generally.
The Debt Securities of each series and the certificates of authentication thereon shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of each series of Debt Securities, including the currency or denomination, which may be Dollars or Foreign Currency), and may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon, as may be required to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such Debt Securities, as evidenced by their signing of such Debt Securities. Any portion
of the text of any Debt Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Debt Security.
Section 2.02 Forms of Debt Securities.
The Debt Securities of each series shall be in such form or forms (including global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto.
Prior to the delivery of a Debt Security of any series in any such form to the Trustee for the Debt Securities of such
series for authentication, the Company shall deliver to the Trustee the following:
(a) The Board Resolution or indenture supplemental hereto by or pursuant to which such form of Debt Security has been
approved;
(b) An Officers’ Certificate dated the date such Certificate is delivered to the Trustee stating that all conditions
precedent provided for in this Indenture relating to the authentication and delivery of Debt Securities in such form have been complied with; and
(c) The Opinion of Counsel described in Section 3.04.
The definitive Debt Securities shall be printed, lithographed or engraved or produced by any combination of these methods
or may be produced in any other manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution thereof.
Section 2.03 Form of Trustee’s
Certificate of Authentication. The following is the form of the Certificate of Authentication of the Trustee to be endorsed on all Debt Securities substantially as follows:
This is one of the Debt Securities of the series designated therein issued under the within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory
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Section 2.04 Debt Securities in Global Form.
(a) If the Company shall establish pursuant to Section 3.01 that the Debt Securities of a particular series are to be issued in whole or in part in the form of one or more Global Debt Securities, then the Company shall execute and the Trustee or its
agent shall, in accordance with Section 3.04 and the Company Order delivered to the Trustee or its agent thereunder, authenticate and deliver such Global Debt Security or Global Debt Securities, which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented by such Global Debt Security or Global Debt Securities, or such portion thereof as the Company shall specify in a Company Order,
(ii) shall be registered in the name of the Depository for such Global Debt Security or Global Debt Securities or its nominee, (iii) shall be delivered by the Trustee or its agent to the Depository or pursuant to the Depository’s instruction or held by
the Trustee as custodian for the Depository and (iv) shall bear a legend substantially to the following effect: “Unless this certificate is presented by an authorized representative of the Depository to the Company or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the name of the nominee of the Depository or in such other name as is requested by an authorized representative of the Depository (and any payment is made to the nominee of the
Depository or to such other entity as is requested by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, the nominee
of the Depository, has an interest herein.”
(b) Notwithstanding any other provision of this Section 2.04 or of Section 3.06, and subject to the provisions of
paragraph (c) below, unless the terms of a Global Debt Security expressly permit such Global Debt Security to be exchanged in whole or in part for individual certificates representing Debt Securities, a Global Debt Security may be transferred, in whole
but not in part and in the manner provided in Section 3.06, only to a nominee of the Depository for such Global Debt Security, or to the Depository, or a successor Depository for such Global Debt Security selected or approved by the Company, or to a
nominee of such successor Depository.
(c) (1) If at any time the Depository for a Global Debt Security notifies the Company that it is unwilling or unable to
continue as Depository for such Global Debt Security or if at any time the Depository for the Global Debt Securities for such series shall no longer be eligible or in good standing under the Exchange Act or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to such Global Debt Security. If a successor Depository for such Global Debt Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company will execute, and the Trustee or its agent, upon receipt of a Company Request for the authentication and delivery of certificates representing Debt Securities of such series in exchange for such Global Debt Security,
will authenticate and deliver, certificates representing Debt Securities of such series of like tenor and terms in an aggregate principal amount equal to the principal amount of the Global Debt Security in exchange for such Global Debt Security.
(2) The Company may at any time and in its sole discretion (subject, however, to the procedures of the Depository)
determine that the Debt Securities of any series or portion thereof issued or issuable in the form of one or more Global Debt Securities shall no longer be represented by such Global Debt Security or Global Debt Securities. In such event the
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Company will execute, and the Trustee, upon receipt of a Company Request for the authentication and delivery of certificates representing Debt Securities of
such series in exchange in whole or in part for such Global Debt Security, will authenticate and deliver certificates representing Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Debt Security or Global Debt Securities representing such series or portion thereof in exchange for such Global Debt Security or Global Debt Securities.
(3) If an Event of Default with respect to Debt Securities issued or issuable in the form of a Global Debt Security has
occurred and is continuing, the Depository for such Global Debt Security may surrender such Global Debt Security in exchange in whole or in part for certificates representing Debt Securities of such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company and such Depository. Thereupon, the Company shall execute, and the Trustee or its agent shall authenticate and deliver, without a service charge, (A) to each Person specified by the Depository a certificate
or certificates representing Debt Securities of the same series of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest as
specified by the Depository in the Global Debt Security; and (B) to such Depository a new Global Debt Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered
Global Debt Security and the aggregate principal amount of certificates representing Debt Securities delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three paragraphs, the Company will execute, and the Trustee or
its agent will authenticate and deliver, certificates representing Debt Securities in definitive registered form in authorized denominations for Debt Securities of the same series or any integral multiple thereof. Upon the exchange of the entire
principal amount of a Global Debt Security for certificates representing Debt Securities, such Global Debt Security shall be cancelled by the Trustee or its agent. Except as provided in the preceding paragraph, certificates representing Debt Securities
issued in exchange for a Global Debt Security pursuant to this Section shall be registered in such names and in such authorized denominations for Debt Securities of that series or any integral multiple thereof, as the Depository shall instruct the
Trustee or its agent. The Trustee or the Debt Security Registrar shall deliver at its Corporate Trust Office such certificates representing Debt Securities to the Holders in whose names such Debt Securities are so registered.
ARTICLE 3
THE DEBT SECURITIES
Section 3.01 Title and Terms.
The aggregate principal amount of Debt Securities which may be authenticated and delivered under this Indenture is unlimited. The Debt Securities may be issued up to the aggregate principal amount of Debt Securities from time to time authorized by or
pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series. All Debt Securities of each series issued under this Indenture
shall in all respects be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account
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of the actual time or times of the authentication and delivery or maturity of the Debt Securities of such series. There shall be established in or pursuant to a
Board Resolution, and set forth in an Officers’ Certificate to the extent not established in a Board Resolution, or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(a) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all
other series of Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of that series pursuant to this Article Three, the second paragraph of
Section 4.03, or Section 11.04);
(c) the date or dates (or the manner of calculation thereof) on which the principal of the Debt Securities of the series
is payable;
(d) the rate or rates (or the manner of calculation thereof) at which the Debt Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date;
(e) the Place of Payment;
(f) the period or periods within which, the price or prices at which, the currency or currency units in which, and the
terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(g) the obligation, if any, of the Company to redeem or purchase Debt Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices in the currency at which, the currency or currency units in which, and the terms and conditions upon which Debt Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which the Debt Securities of such series shall be issuable if other than minimum denominations
of $2,000 and any integral multiple of $1,000 in excess thereof;
(i) if other than Dollars, the currencies in which payments of interest or principal of (and premium, if any, with
respect to) the Debt Securities of the series are to be made;
(j) if the interest on or principal of (or premium, if any, with respect to) the Debt Securities of the series are to be
payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than that in which such Debt Securities are payable, the period or periods within which, and the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between the currency in such Debt Securities are denominated or stated to be payable and the currency in which such Debt Securities or any of them are to be so payable;
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(k) whether the amount of payments of interest on or principal of (or premium, if any, with respect to) the Debt Securities of such series
may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon
which and the manner in which such amounts shall be determined and paid or payable;
(l) the extent to which any Debt Securities will be issuable in permanent global form, the manner in which any payments
on a permanent Global Debt Security will be made, and the appointment of any Depository relating thereto;
(m) any deletions from, modifications of or additions to the Events of Default or covenants with respect to the Debt
Securities of such series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(n) if any of the Debt Securities of such series are to be issuable upon the exercise of warrants, this shall be so
established as well as the time, manner and place for such Debt Securities to be authenticated and delivered;
(o) the inapplicability of any of the provisions of Article 13 with respect to any series of Debt Securities;
(p) the terms of any right to convert the Debt Securities of such series into, or exchange the Debt Securities for, the
Company’s common stock (par value is $0.01) or other securities or property or cash in lieu of the Company’s common stock or other securities or property, or any combination thereof; and
(q) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto.
Notwithstanding Section 3.01(b) and unless otherwise expressly provided with respect to a series of Debt Securities, the
aggregate principal amount of a series of Debt Securities may be increased and additional Debt Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
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Section 3.02 Denominations. The Debt Securities
of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated in Section 3.01. In the absence of any specification with respect to the Debt Securities of any series, the Debt Securities
of such series shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, which may be in Dollars or any Foreign Currency.
Section 3.03 Payment of Principal and
Interest. The principal of, premium, if any, and interest on the Debt Securities shall be payable at the office or agency of the Company designated for that purpose in the Place of Payment, as provided in Section 5.02; provided, however,
that interest may be payable at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear on the Debt Security Register on the Regular Record Date for such interest payment.
Section 3.04 Execution of Debt Securities.
The Debt Securities shall be executed manually or by facsimile in the name and on behalf of the Company by its Chairman of the Board of Directors, its President, one of its Vice Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries. Only such Debt Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, manually executed by the Trustee, shall be entitled to the benefits of this Indenture or be valid or become
obligatory for any purpose. Such certificate by the Trustee upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
In case any officer of the Company who shall have executed any of the Debt Securities shall cease to be such officer
before the Debt Securities so executed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Debt Securities nevertheless shall be valid and binding and may be authenticated and delivered or disposed of as
though the Person who executed such Debt Securities had not ceased to be such officer of the Company; and any Debt Securities may be executed on behalf of the Company by such Persons as, at the actual date of the execution of such Debt Security, shall
be the proper officers of the Company, although at the date of such Debt Security or of the execution of this Indenture any such Person was not such an officer.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt
Securities of any series, properly created in accordance with Section 3.01 and executed by the Company, to the Trustee for authentication; and the Trustee shall authenticate and deliver such Debt Securities upon receipt of a Company Order. In the event
that any other Person performs the Trustee’s duties as Authenticating Agent pursuant to a duly executed agreement, the Company shall notify the Trustee in writing of the issuance of any Debt Securities hereunder, such notice to be delivered in
accordance with the provisions of Section 15.03 on the date such Debt Securities are delivered by the Company for authentication to such other Person.
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Prior to any such authentication and delivery, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, in
addition to the Officers’ Certificates relating to the issuance of any series of Debt Securities pursuant to Sections 2.02, 3.01 (if required by that Section), and Section 15.05, Opinions of Counsel stating that:
(a) all instruments furnished to the Trustee conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt Securities;
(b) all laws and requirements with respect to the form and execution by the Company of the supplemental indenture, if
any, have been complied with; the execution and delivery of the supplemental indenture, if any, will not violate the terms of this Indenture; the supplemental indenture has been duly qualified under the Trust Indenture Act of 1939; the Company has
corporate or company power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes; and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time
in effect);
(c) the form and terms of such Debt Securities have been established in conformity with the provisions of this Indenture;
and
(d) all laws and requirements with respect to the execution and delivery by the Company of such Debt Securities have been
complied with; the authentication and delivery of the Debt Securities by the Trustee will not violate the terms of this Indenture; the Company has the corporate or company power to issue such Debt Securities; and such Debt Securities have been duly
executed on behalf of the Company and, assuming due authentication and delivery by the Trustee, constitute legal, valid and binding obligations of the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and are entitled to the benefits of this Indenture, equally and ratably with all other Outstanding Debt Securities, if
any, of such series.
The Trustee shall not be required to authenticate such Debt Securities if the issue thereof will adversely affect the
Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or such action would expose the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Debt Security for any series, all Debt Securities shall be dated the date of
their authentication.
No Debt Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered hereunder.
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Section 3.05 Temporary Debt Securities. Pending
the preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of the documents required by Sections 2.02, 3.01 and 3.04, together with a Company Order, the Trustee shall authenticate and deliver, such temporary
Debt Securities which may be printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denominations, substantially of the tenor of such definitive Debt Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing such temporary Debt Securities may determine, as evidenced by their execution of such temporary Debt Securities.
If temporary Debt Securities of any series are issued, the Company will cause definitive Debt Securities of such series
to be prepared without unreasonable delay. After the preparation of definitive Debt Securities of any series, the temporary Debt Securities of such series shall be exchangeable for definitive Debt Securities of such series, upon surrender of the
temporary Debt Securities of such series at any office or agency maintained by the Company for such purposes as provided in Section 5.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Debt Securities of such series having the same interest rate and Stated Maturity and bearing interest from the
same date of any authorized denominations. Until so exchanged the temporary Debt Securities of such series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of such series.
Section 3.06 Exchange and Registration of
Transfer of Debt Securities. Debt Securities may be exchanged for a like aggregate principal amount of Debt Securities of such series that are of other authorized denominations. Debt Securities to be exchanged shall be surrendered at any
office or agency to be maintained for such purpose by the Company, as provided in Section 5.02, and the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities of authorized
denominations which the Debt Security Holder making the exchange shall be entitled to receive. Each agent of the Company appointed pursuant to Section 5.02 as a person authorized to register and register transfer of Debt Securities is sometimes herein
referred to as a “Debt Security Registrar.”
The Company shall keep, at an office or agency of the Company maintained for such purpose, as provided in Section 5.02, a
register for each series of Debt Securities hereunder (the registers of all Debt Security Registrars being herein sometimes collectively referred to as the “Debt
Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Debt Securities and shall register the transfer of Debt Securities as provided in this Article Three.
For avoidance of doubt, there shall only be one Debt Security Register for each series of Debt Securities. At all reasonable times, such Debt Security Register shall be open for inspection by the Trustee and any Debt Security Registrar other than the
Trustee. Upon due presentment for registration of transfer of any Debt Security at any such office or agency, the Company shall execute and cause to be registered and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series of authorized denominations for an equal aggregate principal amount. Registration or registration of transfer of any Debt Security by any Debt Security Registrar in the registry
books maintained by such Debt Security Registrar, and delivery of such Debt Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Debt Security. The Trustee is hereby appointed as Debt Security
Registrar for each series of Debt Securities.
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No Person shall at any time be appointed as or act as a Debt Security Registrar unless such Person is at such time empowered under
applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations.
All Debt Securities presented to a Debt Security Registrar for registration of transfer shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and such Debt Security Registrar duly executed by the registered Holder or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Debt Securities, but the Company or the
Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall not be required to issue, exchange or register a transfer of (a) any Debt Securities of any series for
a period of 15 days next preceding the mailing of a notice of redemption of Debt Securities of such series and ending at the close of business on the day of the mailing of a notice of redemption of Debt Securities of such series so selected for
redemption, or (b) any Debt Securities selected, called or being called for redemption except, in the case of any Debt Security to be redeemed in part, the portion thereof not so to be redeemed.
All Debt Securities issued in exchange for or upon registration of transfer of Debt Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered for such exchange or registration of transfer.
None of the Trustee, any agent of the Trustee, any paying agent or the Company will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Debt Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.07 Mutilated, Destroyed, Lost or
Stolen Debt Securities. In case any temporary or definitive Debt Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its request the Trustee shall authenticate and deliver,
a new Debt Security, bearing a number, letter or other distinguishing mark not contemporaneously Outstanding, in exchange and substitution for the mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost or
stolen. In every case the applicant for a substituted Debt Security shall furnish to the Company and to 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 to the Trustee evidence to their satisfaction of the destruction, loss or theft, of such Debt Security and of the ownership thereof.
In the absence of notice to the Trustee or the Company that such Debt Security has been acquired by a bona fide
purchaser, the Trustee shall authenticate any such substituted Debt Security and deliver the same upon any Company Request. Upon the issuance of any substituted
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Debt 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 connected therewith. In case any Debt Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and to the Trustee of the destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of this Section 3.07 by virtue of the fact that any
Debt Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities duly issued hereunder. All Debt 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 Debt Securities and shall preclude (to the extent permitted by law) any and all other rights or remedies with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 3.08 Payment of Interest;
Interest Rights Preserved. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date, on any Debt Security, shall, unless otherwise provided in such Debt Security, be paid to the Person in whose
name the Debt Security (or one or more Predecessor Debt Securities) is registered at the close of business on the Regular Record Date for such interest.
Unless otherwise stated in the form of Debt Security of a series, interest on the Debt Securities of any series shall be
computed on the basis of a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security which is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (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 may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names any such Debt
Securities (or their respective Predecessor Debt 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 Debt 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.
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Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and
not 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 Holder of such Debt Securities, at such Holder’s address as
it appears in the Debt 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 Debt Securities (or their respective Predecessor Debt Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debt Securities of that series 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 payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security delivered under this Indenture upon transfer of
or in exchange for or in lieu of any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Section 3.09 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Debt Security is registered as the owner of such Debt Security for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.08) interest on, such Debt Security and for all other purposes whatsoever whether or not such Debt Security be overdue, and neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Section 3.10 Cancellation of Debt
Securities Paid. All Debt Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer or delivered in satisfaction in whole or in part of any sinking fund obligation shall, if surrendered to the
Company or any agent of the Trustee or the Company under this Indenture, be delivered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Debt Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Indenture. The Company may at any time deliver to the Trustee for cancellation any Debt Securities previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Debt Securities previously authenticated hereunder which the Company has not issued and sold, and all Debt
Securities so delivered shall be promptly cancelled by the Trustee. The Trustee shall dispose of cancelled Debt Securities in accordance with its customary procedures unless directed by a Company Order.
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Section 3.11 Currency and Manner of Payments.
(a) With respect to Debt Securities denominated in Dollars or a Foreign Currency, the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph (c) of this Section 3.11, payment of principal of and
premium, if any, on any Debt Securities will be made at the offices established pursuant to Section 5.02 by delivery of a check in the currency in which the Debt Security is denominated on the payment date against surrender of such Debt Security, and
any interest on any Debt Security will be paid at such office by mailing a check in the currency in which the Debt Securities were issued to the Person entitled thereto at the address of such Person appearing on the Debt Security Register.
(2) Payment of the principal of and premium, if any, and interest on such Debt Security may also, subject to applicable
laws and regulations and subject to surrender as aforesaid in the case of principal and premium, if any, be made at such other place or places as may be designated by the Company by any appropriate method.
(b) Not later than the fourth Business Day after the Regular Record Date for such Interest Payment Date, the paying agent
will deliver to the Company a written notice specifying, in the currency in which each series of the Debt Securities are denominated, the respective aggregate amounts of principal of and premium, if any, and interest on the Debt Securities to be made
on such payment date, specifying the amounts so payable in respect of the Debt Securities. The failure of the paying agent to deliver such notice shall not relieve the Company from its obligation to make all payments with respect to any Debt Security
when due.
(c) If the Foreign Currency in which any of the Debt Securities are denominated ceases to be used both by the government
of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, then with respect to each date for the payment of Foreign Currency occurring after the last date
on which the Foreign Currency was so used (the “Conversion Date”), the Dollar shall be the currency of payment for use on each such Interest Payment
Date. The Dollar amount to be paid by the Company to the Trustee and by the Trustee or any paying agent to the Holder of such Debt Securities with respect to such payment date shall be the Dollar Equivalent of the Foreign Currency as determined by the
Currency Determination Agent in the manner provided in paragraph (d) below.
(d) The “Dollar
Equivalent of the Foreign Currency” shall be determined by the Currency Determination Agent by converting the specified Foreign Currency into Dollars at the Market Exchange Rate as of the Conversion Date.
(e) The “Market Exchange
Rate” shall mean, for any currency, the highest firm bid quotation for U.S. dollars received by the Currency Determination Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date
(or, if no such rate is quoted on such date, the last date on which such rate was quoted, or under the circumstances described in the foregoing paragraph (c), on the
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Conversion Date), from three recognized foreign exchange dealers in New York City selected by the Currency Determination Agent and approved by the Company (one
of which may be the Currency Determination Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of such currency payable on such payment in respect of all Notes denominated in such currency.
(f) All decisions and determinations of the Currency Determination Agent regarding the Dollar Equivalent of the Foreign
Currency and the Market Exchange Rate shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company and all Holders of the Debt Securities. In the event that the
Foreign Currency ceases to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, the Company, after learning thereof,
will promptly give notice thereof to the Trustee (and the Trustee will promptly thereafter give notice in the manner provided in Section 15.03 to the Holders) specifying the Conversion Date.
(g) The Trustee shall be fully justified and protected in relying on and acting upon the information so received by it
from the Company or the Currency Determination Agent and shall not otherwise have any duty or obligation to determine such information independently.
(h) If the principal of (and premium, if any) and interest on any Debt Securities is payable in a Foreign Currency and
such Foreign Currency is not available for payment due to the imposition of exchange controls or other circumstances beyond the control of the Company, then the Company shall be entitled to satisfy its obligations to Holders under this Indenture by
making such payment in Dollars on the basis of the Market Exchange Rate for such Foreign Currency on the latest date for which such rate was established on or before the date on which payment is due. Any payment made pursuant to this Section 3.11 in
Dollars where the required payment is in a Foreign Currency shall not constitute a default or Event of Default under this Indenture.
Section 3.12 CUSIP Numbers.
The Company in issuing the Debt Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Debt Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Debt Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any changes in the “CUSIP” numbers.
ARTICLE 4
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
Section 4.01 Applicability of Article.
The Company may reserve the right to redeem and pay before Stated Maturity all or any part of the Debt Securities of any series, either by optional redemption, sinking fund (mandatory or optional) or otherwise, by provision therefor in the form of Debt
Security for such series on such terms as are specified in such form or the Board Resolution or Officers’ Certificate delivered pursuant to Section 3.01 or the indenture
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supplemental hereto as provided in Section 3.01 with respect to Debt Securities of such series. Redemption of Debt Securities of any series shall be made in
accordance with the terms of such Debt Securities and, to the extent that this Article does not conflict with such terms, in accordance with this Article.
Section 4.02 Notice of Redemption;
Selection of Debt Securities. In case the Company shall desire to exercise the right to redeem all, or, as the case may be, any part of a series of Debt Securities pursuant to Section 4.01, the Company shall fix a date for redemption and
the Company, or, at the Company’s request, the Trustee in the name of and at the expense of the Company, shall mail a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses as the same appear on the Debt Security Register, provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the Redemption Date (or such
shorter period as may be acceptable to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the next succeeding paragraph. Such mailing shall be
by first class mail; provided, however, that so long as the Debt Securities of such series are represented by one or more Global Debt Securities, such notice shall be given in accordance with the procedures of the Depository therefor. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Debt Security
designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security.
Notice of redemption shall be given in the name of the Company and shall specify the date fixed for redemption, the
Redemption Price at which Debt Securities of any series are to be redeemed, or if not then ascertainable, the manner of calculation thereof, the place of payment (which shall be at the offices or agencies to be maintained by the Company pursuant to
Section 5.02), that payment of the Redemption Price will be made upon presentation and surrender of such Debt Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue, and the Section of this Indenture or the paragraph or section of the Debt Securities pursuant to which Debt Securities will be redeemed. In case less than all Debt
Securities of any series are to be redeemed, the notice of redemption shall also identify the particular Debt Securities to be redeemed as a whole or in part and shall state that the redemption is for the sinking fund, if such is the case. In case any
Debt Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new
Debt Security or Debt Securities of such series in aggregate principal amount equal to the unredeemed portion thereof will be issued without charge to the Holder.
If Debt Securities of any series are to be redeemed, the Company shall give the Trustee notice, at least 45 days (or such
shorter period acceptable to the Trustee) in advance of the date fixed for redemption, as to the aggregate principal amount of Debt Securities to be redeemed and as to the date fixed for redemption. Debt Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Debt Securities of such series or any multiple
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thereof. Thereupon the Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair, the Debt Securities or portions
thereof to be redeemed, and shall as promptly as practicable notify the Company of the Debt Securities or portions thereof so selected; provided, however, if the Debt Securities of such series are represented by one or more Global Debt Securities,
interests in such Debt Securities shall be selected for redemption by the Depository therefor in accordance with its customary procedures and the Trustee shall have no responsibilities with respect to such selection. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Debt Securities of any series shall relate, in the case of any Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Debt Security which has been or is to be redeemed. In the case of any redemption of Debt Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, or
(b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction or condition.
On or prior to the date fixed for redemption specified in the notice of redemption given as provided in this
Section 4.02, the Company will deposit with the Trustee or with the paying agent an amount of money in the currency in which the Debt Securities of such series are payable sufficient to redeem on the date fixed for redemption all the Debt Securities so
called for redemption at the appropriate Redemption Price, together with accrued interest to the date fixed for redemption.
The Trustee shall not mail any notice of redemption of any series of Debt Securities during the continuation of any
default in payment of interest on any series of Debt Securities when due or of any Event of Default, except that where notice of redemption with respect to any series of Debt Securities shall have been mailed prior to the occurrence of such default or
Event of Default, the Trustee shall redeem such Debt Securities provided funds are deposited with it for such purpose.
Section 4.03 Payment of Debt Securities
Called for Redemption. If notice of redemption has been given as herein provided, the Debt Securities or portions of Debt Securities with respect to which such notice has been given 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 on and after said date (unless the Company shall default in the payment of such Debt Securities or portions thereof at
the Redemption Price, together with interest accrued to said date) interest on the Debt Securities or portions of Debt Securities so called for redemption shall cease to accrue, and such Debt Securities and portions of Debt Securities shall be deemed
not to be Outstanding hereunder and shall not be entitled to any benefit under this Indenture except to receive payment of the Redemption Price, together with accrued interest to the date fixed for redemption. On presentation and surrender of such Debt
Securities at the place of payment in said notice specified, the said Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable Redemption Price, together with interest accrued thereon to the date
fixed for redemption; provided, however, that any installments of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders of such Debt Securities, or one or more previous Debt Securities evidencing all or a
portion of the same debt as that evidenced by such particular Debt Securities, registered as such on the relevant record dates according to their terms and the provisions of Section 3.08.
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Upon presentation and surrender of any Debt Security redeemed in part only, with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a new Debt Security or Debt Securities of the same series having the same interest rate and Stated Maturity and bearing interest from the same date, of any authorized
denominations as requested by such Holder, in aggregate principal amount equal to the unredeemed portion of the Debt Security so presented and surrendered.
Section 4.04 Exclusion of Certain Debt
Securities from Eligibility for Selection for Redemption. Debt Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by a
Responsible Officer of the Company and delivered to the Trustee at least 45 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company
or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
Section 4.05 Provisions with Respect to
any Sinking Funds. Unless the form or terms of any series of Debt Securities shall provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect to such series of Debt Securities in cash, the
Company may at its option (a) deliver to the Trustee for cancellation any Debt Securities of such series theretofore acquired by the Company, or (b) receive credit for any Debt Securities of such series (not previously so credited) acquired by the
Company and theretofore delivered to the Trustee for cancellation or redeemed pursuant to provisions for an optional redemption or optional sinking fund redemption, then Debt Securities so delivered or credited shall be credited at the applicable
sinking fund Redemption Price with respect to the Debt Securities of such series.
On or before the 45th day next preceding each sinking fund Redemption Date, the Company will deliver to the Trustee a
certificate signed by the Chief Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer of the Company specifying (i) the portion of the mandatory sinking fund payment to be satisfied by deposit of cash in the currency in which
the Debt Securities of such series are payable, by delivery of Debt Securities theretofore purchased or otherwise acquired by the Company (which Debt Securities shall accompany such certificate) and by credit for Debt Securities acquired by the Company
and theretofore delivered to the Trustee for cancellation or redeemed by the Company pursuant to provisions for optional redemption or optional sinking fund redemption and stating that the credit to be applied has not theretofore been so applied and
the basis for such credit and (ii) whether the Company intends to exercise its right, if any, to make an optional sinking fund payment, and, if so, the amount thereof. Such certificate shall also state that no Event of Default has occurred and is
continuing. Such certificate shall be irrevocable, and upon its delivery, the Company shall be obligated to make the payment or payments therein referred to, if any, on or before the next succeeding
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sinking fund payment date. In case of the failure of the Company on or before the 45th day next preceding each sinking fund Redemption Date to deliver such
certificate (or to deliver the Debt Securities specified in this paragraph), the sinking fund payment due on the next succeeding sinking fund payment date shall be paid entirely in cash (in the currency described above) and shall be sufficient to
redeem the principal amount of Debt Securities as a mandatory sinking fund payment, without the option to deliver or credit Debt Securities as provided in the first paragraph of this Section 4.05 and without the right to make an optional sinking fund
payment as provided herein.
If the sinking fund payment or payments (mandatory or optional) with respect to any series of Debt Securities made in
cash (in the currency described above) shall exceed the minimum authorized denomination set forth in an Officers’ Certificate pursuant to Section 3.01 or the equivalent in the currency in which the Debt Securities of such series are payable (or a
lesser sum if the Company shall so request), unless otherwise provided by the terms of such series of Debt Securities, said cash shall be applied by the Trustee on the sinking fund Redemption Date with respect to Debt Securities of such series at the
applicable sinking fund Redemption Price with respect to Debt Securities of such series, together with accrued interest, if any, to the date fixed for redemption, with the effect provided in Section 4.03. The Trustee shall select, in the manner
provided in Section 4.02, for redemption on such sinking fund Redemption Date a sufficient principal amount of Debt Securities of such series to utilize said cash and shall thereupon cause notice of redemption of the Debt Securities of such series for
the sinking fund to be given in the manner provided in Section 4.02 (and with the effect provided in Section 4.03) for the redemption of Debt Securities in part at the option of the Company. Debt Securities of any series which are identified by
registration and certificate number in an Officers’ Certificate at least 45 days prior to the sinking fund Redemption Date as being beneficially owned by, and not pledged or hypothecated by, the Company or an entity directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company shall be excluded from Debt Securities of such series eligible for selection for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the
redemption of Debt Securities of such series shall be added to the next cash sinking fund payment with respect to Debt Securities of such series received by the Trustee and, together with such payment, shall be applied in accordance with the provisions
of this Section 4.05. Any and all sinking fund moneys with respect to Debt Securities of any series held by the Trustee at the maturity of Debt Securities of such series, and not held for the payment or redemption of particular Debt Securities of such
series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Debt Securities of such series at maturity.
The Trustee shall not convert any currency in which the Debt Securities of such series are payable for the purposes of
such sinking fund application unless a Company Request is made, and any such conversion agreed to by the Trustee in response to such request shall be for the account and at the expense of the Company and shall not affect the Company’s obligation to pay
the Holders in the currency to which such Holder is entitled.
On or before each sinking fund Redemption Date provided with respect to Debt Securities of any series, the Company shall
pay to the Trustee in cash in the currency described above a sum equal to all accrued interest, if any, to the date fixed for redemption on Debt Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 4.05.
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ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01 Payment of Principal,
Premium and Interest. The Company will duly and punctually pay or cause to be paid (in the currency in which the Debt Securities of such series are payable) the principal of and premium, if any, and interest on each of the Debt
Securities at the place (subject to Section 3.03), at the respective times and in the manner provided in each series of Debt Securities and in this Indenture.
Section 5.02 Offices for Notices and
Payments. (a) So long as the Debt Securities of any series remain Outstanding, the Company will maintain at the Place of Payment, an office or agency where the Debt Securities may be presented for payment, an office or agency where the
Debt Securities may be presented for registration of transfer and for exchange as provided in this Indenture, and an office or agency where notices and demands to or upon the Company in respect of the Debt Securities or of this Indenture may be served
and shall give the Trustee written notice thereof and any changes in the location thereof. In case the Company shall at any time fail to maintain any such office or agency, or shall fail to give notice to the Trustee of any change in the location
thereof, presentation and demand may be made and notice may be served in respect of the Debt Securities or of this Indenture at said office of the Trustee. The Company hereby appoints the Trustee as its agent for all of the foregoing purposes with
respect to the Debt Securities of each series.
(b) In addition to the office or agency maintained by the Company pursuant to Section 5.02(a), the Company may from time
to time designate one or more other offices or agencies where the Debt Securities may be presented for payment and presented for registration of transfer and for exchange in the manner provided in this Indenture, and the Company may from time to time
rescind such designations, as the Company may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain such office and agency at the Place of Payment,
for the purposes abovementioned. The Company will give to the Trustee prompt written notice of (i) any such designation or rescission thereof, and (ii) the location of any such office or agency outside the Place of Payment and of any change of location
thereof.
Section 5.03 Appointments to Fill
Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 5.04 Provisions as to Paying
Agent. (a) (1) Whenever the Company shall have one or more paying agents for any series of Debt Securities other than the Trustee, it will, on or before each due date of the principal of (and premium, if any) or interest on any Debt
Securities of such series, deposit with a paying agent a sum sufficient to pay such amount becoming due, such sum to be held as provided by the Trust Indenture Act of 1939, and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
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(2) The Company will cause each paying agent other than the Trustee to execute and deliver to the Trustee an instrument in which such
paying agent shall agree with the Trustee, subject to the provisions of this Section, that such paying agent will: (i) comply with the provisions of the Trust Indenture Act of 1939 applicable to it as a paying agent and (ii) during the continuance of
any default by the Company (or any other obligor upon any series of Debt Securities) in the making of any payment in respect of the Debt Securities of such series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such paying agent as such.
(b) If the Company shall act as its own paying agent, it will, on or prior to each due date of the principal of and
premium, if any, or interest on Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of such Debt Securities a sum sufficient to pay such principal and premium, if any, or interest so becoming due and
will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on such series of Debt Securities) to make any payment of the principal of and premium, if any, or interest on the Debt Securities
when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture with respect to any or all series of Debt Securities then Outstanding, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company, or any paying agent
hereunder, as required by this Section 5.04, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the agreement to hold sums in trust provided in this
Section 5.04 is subject to Section 13.04.
Section 5.05 Certificate to Trustee.
So long as the Debt Securities of any series remain Outstanding, the Company will deliver to the Trustee on or before 120 days after the end of each fiscal year an Officers’ Certificate stating that such officer has reviewed the covenants of the
Indenture with respect to each outstanding series of Debt Securities and, in the course of the performance by the signers of their duties as officers of the Company, they would normally have knowledge of any default by the Company in the performance or
fulfillment or observance of any covenants or agreements contained herein during the preceding fiscal year, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and
the nature thereof. The Officers’ Certificate need not comply with Section 15.05. One of the signatories to this Officers’ Certificate shall be the Company’s principal executive officer, principal financial officer or principal accounting officer.
Section 5.06 Waivers of Covenants.
Anything in this Indenture to the contrary notwithstanding, the Company may fail or omit, in respect of any series of Debt Securities, and in any particular instance, to comply with a covenant, agreement or condition contained in Section 5.05 (unless
required to be complied with pursuant to Section 314(a)(4) of the Trust Indenture Act of 1939), or with any additional covenant, agreement or condition contained in a Board Resolution or Officers’ Certificate establishing such series of Debt
Securities, any indenture supplemental hereto applicable to such series or any Debt Security of such series (unless such Board Resolution, Officers’ Certificate, or supplemental indenture provides
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otherwise) if the Company shall have obtained and filed with the Trustee before or after the time for such compliance the consent in writing of the Holders of
more than 50% in aggregate principal amount of the Debt Securities of the series affected by such waiver at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect any obligation not expressly waived nor impair any right consequent thereon and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE 6
HOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01 Holders’ Lists.
The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, not more than 15 days after each Regular Record Date with respect to the Debt Securities of any series, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Debt Securities of such series as of a date not more than 15 days prior to
the time such information is furnished; provided, however, that no such list with respect to any particular series of Debt Securities need be furnished at any such time if the Trustee is in possession thereof by reason of its acting as the Debt
Security Registrar for such series designated under Section 3.06 or otherwise.
Section 6.02 Preservation and Disclosure
of Lists. (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 Debt Securities contained in the most recent list furnished to it as provided in
Section 6.01 or received by the Trustee in the capacity of the Debt Security Registrar (if so acting) under Section 3.06. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under
the Debt Securities of any series or of all Debt Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act of 1939.
(c) Every Holder of Debt Securities, by receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act of 1939.
Section 6.03 Reports by the Company.
The Company agrees to file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act of 1939 at the times and in the
manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission; provided further that any such information, documents or reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or
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EDGAR) system or any successor thereto shall be deemed to be filed with the Trustee. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 6.04 Reports by the Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the times and in the manner provided pursuant thereto. The interval
between transmissions of reports to be transmitted at intervals shall be twelve months or such shorter time required by the Trust Indenture Act of 1939. If the Trust Indenture Act of 1939 does not specify the date on which a report is due, such report
shall be due on July 15 of each year following the first issuance of Debt Securities and shall be as of a date not more than sixty (60) days prior thereto.
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which Debt Securities of any series are listed, with the Commission and with the Company. The Company will notify the Trustee when the Debt Securities of any series are listed on any stock exchange and of any delisting thereof.
ARTICLE 7
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
Section 7.01 Events of Default.
“Event of Default”, with respect to any series of Debt Securities, wherever used herein, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless
such event is either inapplicable to such series or it is specifically deleted or modified in the Board Resolution, Officers’ Certificate or supplemental indenture under which such series of Debt Securities is issued or in the form of Debt Security for
such series:
(a) default in the payment of any installment of interest upon any Debt Security of such series as and when the same
shall become due and payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of and premium, if any, on any Debt Security of such series as and when the
same shall become due and payable either at maturity, upon redemption, by declaration of acceleration or otherwise;
(c) default in the payment or satisfaction of any sinking fund payment or analogous obligation, if any, with respect to
the Debt Securities of such series as and when the same shall become due and payable by the terms of the Debt Securities of such series, and continuance of such default for a period of 30 days;
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(d) failure on the part of the Company duly to observe or perform any of the covenants, warranties or agreements on the part of the
Company in respect of the Debt Securities of such series in this Indenture (other than a covenant, warranty or agreement a default in whose performance or whose breach is specifically dealt with elsewhere in this Section) continued for a period of
90 days after the date on which written notice of such failure, specifying such failure and requiring the same to be remedied, shall have been given to the Company by the Trustee, by registered mail, or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of such series;
(e) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by
which there may be secured or evidenced, any indebtedness of the Company, whether such indebtedness now exists or is hereafter created or incurred, happens and consists of default in the payment of more than $25,000,000 in principal amount of such
indebtedness at the maturity thereof, after giving effect to any applicable grace period, or results in such Indebtedness in principal amount in excess of $25,000,000 becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such default is not cured or such acceleration is not rescinded or annulled within a period of 30 days after the date on which written notice of such failure, specifying such failure and requiring the same to be
remedied, shall have been given to the Company by the Trustee, by registered mail, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Debt Securities of such series;
(f) the failure by the Company within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order
for the payment of money in excess of $25,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith;
(g) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under the Federal bankruptcy laws or any other similar applicable Federal or state law, and such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee or other similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days;
(h) the Company shall institute proceedings to be adjudicated voluntarily bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent seeking an arrangement or a reorganization under the Federal bankruptcy laws or any other similar applicable Federal or state law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee or other similar official in bankruptcy or insolvency of it or of all or substantially all of its property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
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(i) any other Event of Default provided in the Board Resolution, Officers’ Certificate or the supplemental indenture under which such
series of Debt Securities is issued or in the form of Debt Security for such series;
then and in each and every such case, so long as such Event of Default with respect to any series of Debt Securities for which there are Debt
Securities Outstanding occurs and is continuing (other than an Event of Default specified in clause (g) or (h) of this Section 7.01) and shall not have been remedied or waived to the extent permitted by the terms of this Indenture, unless the principal
of all of the Debt Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of such series, by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) of
all the Debt Securities of such series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt
Securities of such series contained to the contrary notwithstanding. If an Event of Default specified in clause (g) or (h) of this Section 7.01 occurs and is continuing, then the principal amount of (or, if the Debt Securities of that series are
Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereof as due and payable upon acceleration) and any accrued and unpaid interest on that series shall immediately become due and payable
without any declaration or other act on the part of the Trustee or any Holder. This provision, however, is subject to the condition that if, at any time after the principal of the Debt Securities of such series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay in the currency in which the Debt
Securities of such series are payable all matured installments of interest upon all of the Debt Securities and the principal of and premium, if any, on any and all Debt Securities of such series which shall have become due otherwise than by such
declaration (with interest on overdue installments of interest to the extent that payment of such interest is enforceable under applicable law and on such principal and premium, if any, at the rate borne by the Debt Securities of such series or as
otherwise provided in the form of Debt Security for such series, to the date of such payment or deposit) and all amounts due to the Trustee under Section 8.06, or provision deemed by the Trustee to be adequate shall have been made therefor, and any and
all defaults under this Indenture, other than the nonpayment of principal of and accrued interest on Debt Securities of such series which shall have become due by such declaration, shall have been cured or shall have been waived in accordance with
Section 7.07—then and in every such case the Holders of at least a majority in aggregate principal amount of the Debt Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
In case the Trustee or any Holders shall have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceeding had been taken.
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Section 7.02 Payment of Debt Securities Upon Default; Suit
Therefor. The Company covenants that (a) in case default shall be made in the payment of any installment of interest upon any Debt Security of any series as and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the payment of the principal of and premium, if any, on any Debt Security of any series as and when the same shall have become due and payable, whether at maturity of the Debt
Security or upon redemption or by declaration or otherwise or (c) in case default shall be made in the making or satisfaction of any sinking fund payment or analogous obligation with respect to the Debt Securities of any series when the same becomes
due by the terms of the Debt Securities of any series, and such default shall have continued for a period of 30 days—then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of any such series, the whole
amount that then shall have become due and payable on any such Debt 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 the overdue installments of interest at the rate borne by the Debt Securities of such series or as otherwise provided in the form of Debt Security of such series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred and advances made by the Trustee, except
compensation or advances arising, or expenses or liabilities incurred, as a result of the Trustee’s gross negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the principal of and premium, if any, and interest on the
Debt Securities of any series to the Persons entitled thereto, whether or not the principal of and premium, if any, and interest on the Debt Securities of such series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any actions 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 any other obligor on such Debt Securities and collect, in the manner provided by law out of the property of the Company or any other obligor on such Debt Securities wherever situated,
the moneys adjudged or decreed to be payable. If any Event of Default with respect to any series of Debt Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of
Debt Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
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In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Debt
Securities of any series under the Federal bankruptcy laws or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities of any series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Debt Securities of such series
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.02, shall be entitled and empowered by intervention in
such proceedings or otherwise, (a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Debt Securities of such series, and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of the Debt Securities of such series allowed in such judicial proceedings relative to the Company or any other obligor
on such Debt Securities, its or their creditors, or its or their property, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of any Debt Securities of any series in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and (c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Debt 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 Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred and advances made by the Trustee except compensation or advances arising, or expenses or liabilities incurred, as a result of the Trustee’s gross negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept, or adopt on
behalf of any Holder any plan or reorganization, arrangement, adjustment or composition affecting the Debt Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder (except, as aforesaid,
for the election of a trustee in bankruptcy or other Person performing similar functions) in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may
be enforced by the Trustee without the possession of any of such Debt Securities, or the production thereof on 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 be for the ratable benefit of the Holders of the Debt Securities of such series in respect of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Debt Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Debt Securities parties
to any such proceedings.
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Section 7.03 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to Section 7.02 and any other money or property distributed in respect of the Company’s obligations under this Indenture after an Event of Default shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon presentation of the Debt Securities of such series, and stamping 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 reasonable compensation to the Trustee, its agents,
attorneys and counsel, and of all other expenses and liabilities incurred, and all advances made, by the Trustee except compensation or advances arising, or expenses or liabilities incurred, as a result of its gross negligence or bad faith, and any
other amounts owing the Trustee under Section 8.06;
SECOND: In case the principal of the Debt Securities of such series shall not have become due and be unpaid, to the
payment of interest on such Debt Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate
borne by such Debt Securities, such payments to be made ratable to the Persons entitled thereto;
THIRD: In case the principal of the Debt Securities of such series shall have become due, by declaration or otherwise, to
the payment of the whole amount then owing and unpaid upon such Debt Securities for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by such Debt Securities; and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon such Debt Securities, then, to the payment of such principal
and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any
Debt Security of such series over any other such Debt Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest;
FOURTH: To the payment of any surplus then remaining to the Company, its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same.
Section 7.04 Proceedings by Holders.
No Holder of any Debt Security of any series shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law or in bankruptcy or otherwise upon, under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of the Debt 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 and 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 the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit or proceeding (and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 7.07), it being
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understood and intended, and being expressly covenanted by the taker and Holder of every Debt Security of every series with every other taker and Holder and the
Trustee, that no one or more Holders of Debt Securities shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of such Debt 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 Debt Securities.
Section 7.05 Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders 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 by suit in equity or by action at law or by proceeding 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.
Section 7.06 Remedies Cumulative and
Continuing. All powers and remedies given by this Article Seven to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 7.04, every power
and remedy given by this Article Seven or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 7.07 Direction of Proceedings and
Waiver of Defaults by Majority of Holders. The Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series shall have the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of such series by this Indenture; provided, however, that (subject to the provisions of Section 8.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee shall determine upon advice of counsel that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceeding so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Debt Securities of all series not joining in the giving of said directions, it being understood that
(subject to Section 8.01) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are duly prejudicial to such Holders. The Trustee may take any other action deemed proper by the Trustee not inconsistent with such
direction. Subject to Section 7.01, the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt Securities
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of such series waive any past default or Event of Default hereunder and its consequences except a default in the payment of principal of or premium, if any, or
interest on such Debt Securities, or a default in the making of any sinking fund payment with respect to such Debt Securities. Upon any such waiver, the Company, the Trustee and the Holders of such Debt Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default shall have been waived as permitted by
this Section 7.07, said default or Event of Default shall for all purposes of the Debt Securities and this Indenture be deemed to have been cured and to be not continuing.
This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act of 1939 and such
Sections 316(a)(1)(A) and 316(a)(1)(B) are hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.
Section 7.08 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Debt Securities of any series, the Trustee shall transmit by first-class by mail, postage prepaid, to all Holders of Debt Securities of such series, as their names and
addresses appear in the Debt Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series or in the payment of any sinking fund installment with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Debt Securities of such series; and provided,
further, that in the case of any default of the character specified in Section 7.01(d) with respect to Debt Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Debt Securities of such series.
Section 7.09 Undertaking to Pay Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act of 1939; provided that neither this Section nor the Trust Indenture Act of 1939 shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee, and any provision of the Trust Indenture Act of 1939 to such effect is hereby expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939.
Section 7.10 Unconditional Right of
Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Debt Security shall have the rights, which are absolute and unconditional, to receive payment of the principal
of, premium, if any, and (subject to Section 3.08) interest on such Debt Security on the respective Stated Maturities expressed in such Debt Security (or in the case of redemption or repayment, on the date for redemption or repayment, as the case may
be) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
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ARTICLE 8
CONCERNING THE TRUSTEE
Section 8.01 Duties and Responsibilities
of Trustee.
(a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon 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 which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise 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 person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) 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) this Subsection (c) shall not be construed to limit the effect of Subsection (a) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer 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 a majority in principal amount of the Outstanding Debt Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Debt Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section 8.01.
Section 8.02 Reliance on Documents,
Opinions. Subject to the provisions of Section 8.01,
(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, bond, debenture, note or other paper 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 Company
Request or Company Order (unless otherwise evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and 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 or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities
which may be incurred by it in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken, suffered 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, debenture, note, or other paper or document, unless requested in writing to do so by the Holders of not less than a majority in principal amount of
such Debt Securities then Outstanding; provided, however, that the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and provided, further, 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 expenses or liabilities as a condition to so proceeding;
(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 liable or responsible for any misconduct, bad faith or negligence on the part of any agent or attorney appointed with due care by it hereunder;
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(h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default or Event of Default unless written notice
of such default or Event of Default from the Company or any Holder is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Debt Securities and this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(l) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded; and
(m) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
Section 8.03 No Responsibility for
Recitals. The recitals contained herein and in the Debt Securities (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series. The Trustee represents that it is duly authorized to execute and deliver this Indenture. Neither the Trustee nor
the Authenticating Agent shall be accountable for the use or application by the Company of any Debt Securities or the proceeds of any Debt Securities authenticated and delivered by the Trustee hereunder.
Section 8.04 Trustee and Agents May Own
Debt Securities. The Trustee, any paying agent, or any agent of the Trustee or the Company under this Indenture, in its individual or any other capacity, may become the owner or pledgee of Debt Securities of any series with the same
rights it would have if it were not Trustee or such agent and, subject to Sections 8.08 and 8.13, if operative, may otherwise deal with the Company and receive, collect, hold, and retain collections from the Company with the same rights it would have
if it were not the Trustee or such agent.
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Section 8.05 Moneys to be Held in Trust. Subject
to the provisions of Section 13.04, 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. Neither the Trustee nor any paying agent shall be under any liability for interest on, or to invest, any moneys received by it hereunder except such as it may agree with the Company to pay thereon. So long as no Event of Default with
respect to the Debt Securities of any series shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the receipt of a Company Order.
Section 8.06 Compensation and Expenses of
Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and 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 all persons not regularly in its employ and any amounts paid by the Trustee to any Authenticating Agent pursuant to Section 8.14) except any such expense,
disbursement or advance as may arise from its gross negligence or bad faith. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred without gross negligence or
bad faith on the part of the Trustee and arising out of or in connection with this Indenture, including the acceptance or administration of this trust, or the performance of its duties hereunder, including the current payment of all costs and expenses
of defending itself against any claim of liability in the premises. The obligations of the Company under this Section 8.06 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 Debt 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 Debt Securities. In addition to, but without prejudice to its other rights under this indenture or available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01(g) or Section 7.01(h), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
“Trustee” for
purposes of this Section shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
The provisions of this Section shall survive the termination of this Indenture, the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee.
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Section 8.07 Officers’ Certificate as Evidence.
Subject to the provisions of Section 8.01, 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 omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate
conforming to the requirements of this Indenture delivered to the Trustee, and such Certificate, in the absence of gross negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it
under the provisions of this Indenture upon the faith thereof.
Section 8.08 Conflicting Interest of
Trustee. If the Trustee has or shall acquire any conflicting interest within the meaning of the Trust Indenture Act of 1939, the Trustee shall either eliminate such conflicting interest or resign in the manner provided by, and subject to
the provisions of, the Trust Indenture Act of 1939 and this Indenture.
Section 8.09 Eligibility of Trustee.
There shall at all times be a Trustee with respect to each series of Debt Securities hereunder which shall be a Person organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia
authorized under such laws to exercise trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, state, territorial, or District of Columbia authority and willing to act as Trustee
hereunder. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee with respect to any series of Debt Securities shall cease to be eligible in accordance with
the provisions of this Section 8.09, such Trustee shall resign immediately in the manner and with the effect specified in Section 8.10.
Section 8.10 Resignation or Removal of
Trustee. (a) The Trustee may at any time resign with respect to any series of Debt Securities by giving written notice by first class mail of such resignation to the Company and to the Holders of such series of Debt Securities at their
addresses as they shall appear on the Debt Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to 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 with respect to such series shall have been so appointed and have accepted appointment within
45 days after the mailing of such notice of resignation to the Holders, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder of such series of
Debt Securities who has been a bona fide Holder of a Debt Security or Debt Securities of such series for at least six months may, subject to the provisions of Section 7.09, on behalf of such Holder and all others similarly situated, petition any such
court for the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint such successor trustee.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section 8.08 after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Debt Security or Debt Securities of such series for at least six months, unless the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act of
1939,
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09 and shall fail to resign
after written request therefor by the Company or by any such Holder of a Debt Security of such series, or
(3) the Trustee shall become incapable of acting with respect to any series of Debt Securities, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, 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 such series and appoint a successor trustee for such series by
Company Order, one copy of which Company Order shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.09, any Holder who has been a bona fide Holder of a Debt Security or Debt
Securities of such series for at least six months may, on behalf of such 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 with respect to
such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove such Trustee and appoint such successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series may at any
time remove the Trustee with respect to such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Company the evidence provided for in Section 9.01 of the action in that regard taken by the Holders, and
nominate a successor Trustee which shall be deemed appointed as successor Trustee unless within ten days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of a Debt Security or Debt Securities of such
series, upon the terms and conditions and otherwise as in subsection (a) of this Section 8.10 provided, may petition any court of competent jurisdiction for an appointment of a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee with respect to all or any series of Debt Securities and any appointment of
a successor Trustee pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 8.11.
Section 8.11 Acceptance by Successor
Trustee. Any successor Trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective with respect to all or
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any series as to which it is resigning as Trustee, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder with respect to all or any such series, with like effect as if originally named as Trustee herein with respect to all or any such series; nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such successor Trustee all the rights and
powers of the Trustee with respect to all or any such series so ceasing to act. Upon request of any such successor Trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee with respect to all or any series as to which it is ceasing to act as Trustee, to
secure any amounts, including indemnities, then due it pursuant to the provisions of Section 8.06.
No successor Trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such
successor Trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to all or any series of Debt Securities as provided in
this Section 8.11, the Company shall mail notice of the succession of such Trustee hereunder to the Holders of Debt Securities of such series at their addresses as they shall appear on the Debt Security Register. If the Company fails to mail such
notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Company.
In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto which 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 Debt Securities of any series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and 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 and 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.
Section 8.12 Succession by Merger.
Subject to Sections 8.08 and 8.09, any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto.
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In case at the time any successor to the Trustee by merger, conversion or consolidation shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Debt Securities so authenticated; and in
case at that time any of the Debt Securities shall not have been authenticated, any such successor to the Trustee may authenticate such Debt Securities either in the name of the predecessor Trustee or such successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of the Trustee shall have.
Section 8.13 Limitation on Rights of
Trustee as a Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Debt Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act of 1939 regarding the
collection of claims against the Company (or any such other obligor).
Section 8.14 Authenticating Agents.
There may be an Authenticating Agent or Authenticating Agents appointed by the Trustee from time to time with power to act on its behalf and subject to its direction in the authentication and delivery of any series of Debt Securities issued upon
original issuance, exchange, transfer or redemption thereof as fully to all intents and purposes as though such Authenticating Agent (or Authenticating Agents) had been expressly authorized to authenticate and deliver such Debt Securities, and Debt
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as though authenticated by the Trustee hereunder. For all purposes of this Indenture, the authentication and delivery of
Debt Securities by any Authenticating Agent pursuant to this Section 8.14 shall be deemed to be the authentication and delivery of such Debt Securities “by the Trustee”, and whenever this Indenture provides that “the Trustee shall authenticate and
deliver” Debt Securities or that Debt Securities “shall have been authenticated and delivered by the Trustee”, such authentication and delivery by any Authenticating Agent shall be deemed to be authentication and delivery by the Trustee. Any such
Authenticating Agent shall at all times be a Person organized and doing business under the laws of the United States of America or of any state or territory thereof or the District of Columbia, with a combined capital and surplus of at least
$50,000,000 and authorized under such laws to act as an authenticating agent, duly registered to act as such, if and to the extent required by applicable law and subject to supervision or examination by Federal or state authority. If such Person
publishes reports of its condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 8.14 the combined capital and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.14, or to be duly registered if and to the extent required
by applicable law and regulations, it shall resign immediately in the manner and with the effect herein specified in this Section 8.14.
Whenever reference is made in this Indenture to the authentication and delivery of Debt Securities of any series by the
Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by its Authenticating Agent appointed with respect to the Debt Securities of such series and a
certificate of authentication executed on behalf of the Trustee by its Authenticating Agent appointed with respect to the Debt Securities of such series.
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Any Person into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting
from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any Person succeeding to the authenticating agency business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder,
if such successor Person is otherwise eligible under this Section 8.14, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent or such successor Person.
In case at the time such successor to any such agency shall succeed to such agency any of the Debt Securities shall have
been authenticated but not delivered, any such successor to such Authenticating Agent may adopt the certificate of authentication of any predecessor Authenticating Agent and deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities shall not have been authenticated, any successor to any Authenticating Agent may authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of the successor Authenticating Agent; and in all
cases such certificate shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of the predecessor Authenticating Agent shall have such force; provided, however, that the right to adopt
the certificate of authentication of any predecessor Authenticating Agent or to authenticate Debt Securities in the name of any predecessor Authenticating Agent shall apply only to its successor or successors by merger, conversion or consolidation.
Any Authenticating Agent may at any time resign as Authenticating Agent with respect to any series of Debt Securities by
giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent with respect to any series of Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible under this Section 8.14, the Trustee may, and shall, upon
request of the Company, promptly use its best efforts to appoint a successor Authenticating Agent.
Upon the appointment, at any time after the original issuance of any of the Debt Securities, of any successor, additional
or new Authenticating Agent, the Trustee shall give written notice of such appointment to the Company and shall at the expense of the Company mail notice of such appointment to all Holders of Debt Securities of such series as the names and addresses of
such Holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to any series of Debt Securities upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as though originally named as an Authenticating Agent herein with respect to such series. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.14 and duly registered if and to the extent required under applicable law and regulations.
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Any Authenticating Agent by the acceptance of its appointment with respect to any series of Debt Securities shall be deemed to have agreed
with the Trustee that: (a) it will perform and carry out the duties of an Authenticating Agent as herein set forth with respect to such series, including the duties to authenticate and deliver Debt Securities when presented to it in connection with
exchanges, registrations of transfer or redemptions thereof; (b) it will keep and maintain, and furnish to the Trustee from time to time as requested by the Trustee appropriate records of all transactions carried out by it as Authenticating Agent and
will furnish the Trustee such other information and reports as the Trustee may reasonably require; (c) it is eligible for appointment as Authenticating Agent under this Section 8.14 and will notify the Trustee promptly if it shall cease to be so
qualified; and (d) it will indemnify the Trustee against any loss, liability or expense incurred by the Trustee and will defend any claim asserted against the Trustee by reason of any acts or failures to act of the Authenticating Agent with respect to
such series but it shall have no liability for any action taken by it at the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation and expenses for its
services, and the Trustee shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04, 8.06 (insofar as it pertains to indemnification),
3.09, 9.01 and 9.02 shall bind and inure to the benefit of each Authenticating Agent to the same extent that they bind and inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant to this Section 8.14, the Debt Securities of such
series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein issued under the within-mentioned Indenture.
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As Trustee
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By:
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as Authenticating Agent
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By:
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as Authorized Officer
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Section 8.15 Trustee’s
Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee
under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing
to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
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ARTICLE 9
CONCERNING THE HOLDERS
Section 9.01 Action by Holders.
Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Debt Securities of any 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 specified percentage of such series have joined therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders of such series in person or by agent or proxy appointed in writing, or (b) by the record of the Holders of such series voting in favor thereof at any meeting of such Holders duly called and held in accordance with the
provisions of Article Ten, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders of such series. Such instrument or instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting.
Section 9.02 Proof of Execution by
Holders. Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a Holder or such Holder’s agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities shall be provided by the Debt Security Register or by a certificate of the Debt Security Registrar with respect
to a series of Debt Securities.
The record of any Holders’ meeting shall be proved in the manner provided in Section 10.06.
Section 9.03 Company-Owned Debt
Securities Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Debt Securities of any series have given any request, demand, authorization, direction, notice, consent, or waiver under this
Indenture, Debt Securities of such series which are owned by the Company or any other obligor upon such Debt Securities or any Affiliate of the Company or such other obligor (except in the case in which the Company or such other obligor or Affiliate
owns all Debt Securities Outstanding under the Indenture, or all Outstanding Debt Securities of each such series, as the case may be, without regard to this proviso) shall be disregarded and deemed not to be Outstanding for the purpose of any such
determinations; provided, however, that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent, or waiver only such Debt Securities which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded. Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding notwithstanding this Section 9.03 if the pledgee shall establish to the
satisfaction of the Trustee the right of the pledgee to act with respect to such Debt Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect
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common control with the Company or any such other obligor. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Debt Securities of a series, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on such Debt Securities or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or any other obligor on such Debt Securities; and, subject to the provisions of Section 8.01, the Trustee shall be entitled to accept such Officers’ Certificates as conclusive
evidence of the facts therein set forth and of the fact that all such Debt Securities not listed therein are Outstanding for the purpose of any such determination.
Section 9.04 Revocation of Consents;
Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of
any series specified in this Indenture in connection with such action, any Holder of a Debt Security which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to or are bound by consents to such action,
may, by filing written notice with the Trustee at the Corporate Trust Office and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any
Debt Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and of any Debt Security issued on registration of transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Debt Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Debt Securities specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the Holders of all of the Debt Securities affected by such action.
ARTICLE 10
HOLDERS’ MEETINGS
Section 10.01 Purposes of Meetings.
A meeting of Holders of the Debt Securities of all or any series may be called at any time and from time to time pursuant to the provisions of this Article Ten for any of the following purposes:
(a) to give any notice to the Company or to the Trustee with respect to such series, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Seven;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Eight;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of
Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal
amount of the Debt Securities of all or any series, as the case may be, under any other provision of this Indenture or under applicable law.
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Section 10.02 Call of Meetings by Trustee. The
Trustee may at any time call a meeting of Holders of Debt Securities of all or any series to take any action specified in Section 10.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders of
Debt Securities of all or any series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed by the Trustee to Holders of Debt Securities of each series that may be
affected by the action proposed to be taken at such meeting at their addresses as they shall appear on the Debt Security Register. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Section 10.03 Call of Meetings by Company
or Holders. In case at any time the Company, pursuant to a resolution by the Board of Directors, or the Holders of at least 10% in aggregate principal amount of the Debt Securities then Outstanding of each series that may be affected by
the action proposed to be taken shall have requested the Trustee to call a meeting of such Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice
of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and place for such meeting and may call such meeting to take any action authorized in Section 10.01, by mailing notice thereof as
provided in Section 10.02.
Section 10.04 Qualifications for Voting.
To be entitled to vote at any meeting of Holders of Debt Securities a person shall (a) be a Holder of one or more Debt Securities of a series affected by the action proposed to be taken or (b) be a Person appointed by an instrument in writing as proxy
by a Holder of one or more such Debt Securities. The rights of Holders of Debt Securities to have their votes counted shall be subject to the provision in the definition of “Outstanding” in Section 1.01. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Debt Securities 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 10.05 Regulations.
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 Debt Securities, in regard to proof of the holding of Debt 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
think fit. Except as otherwise permitted or required by any such regulation, the holding of Debt Securities shall be proved in the manner specified in Section 9.02 and the appointment of any proxy shall be proved in the manner specified in said
Section 9.02 or by having the signature of the Person executing the proxy witnessed or guaranteed by any bank, broker or trust company.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of Debt Securities as provided in Section 10.03, in which case the Company or the Holders of Debt Securities calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the Debt Securities represented at the meeting and entitled to vote.
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Subject to the provisions of Section 9.03, at any meeting each Holder of a Debt Security of a series entitled to vote at such meeting or
proxy shall be entitled to one vote for each $1,000 principal amount of Debt Securities of such series held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Debt Security
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 Debt Securities of such series or proxy therefor. Any meeting of Holders of Debt
Securities duly called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time to time and the meeting may be held as so adjourned without further notice.
At any meeting of Holders of Debt Securities, the presence of Persons holding or representing Debt Securities in an
aggregate principal amount sufficient to take action upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum; but, if less than a quorum be present, the Persons holding or representing a majority
of the Debt Securities represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present.
Section 10.06 Voting. The vote
upon any resolution submitted to any meeting of Holders of Debt Securities shall be by written ballots on which shall be subscribed the signatures of the Holders of Debt Securities entitled to vote at such meeting or of their representatives by proxy,
and the letter or letters, serial number or numbers or other distinguishing marks of the Debt Securities held or represented by each such Holder. 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 in duplicate of the proceedings of each meeting of Holders
of Debt Securities 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 mailed as provided in Section 10.02. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other 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.
Section 10.07 No Delay of Rights by
Meeting. Nothing contained in this Article Ten shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of Debt Securities of any or all series or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Debt Securities under any of the provisions of this Indenture or of the Debt Securities.
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ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.01 Supplemental Indentures
without Consent of Holders. The Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Company pursuant to Articles Five and Twelve hereof;
(b) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Board of
Directors shall consider to be for the protection of the Holders of Debt Securities of any or all series, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to such series permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant,
restriction or condition, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to make any changes hereto that are required by law;
(d) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee;
(e) to make such other provisions in regard to matters or questions arising under this Indenture as shall not adversely
affect the interests of the Holders of the Debt Securities and to make any change that would provide additional rights or benefits to the Holders of Debt Securities of any or all series or that does not adversely affect the legal rights under this
Indenture of any such Holder of Debt Securities;
(f) to evidence and provide for the acceptance of appointment by another Person as a successor Trustee hereunder with
respect to one or more series of Debt Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to
Section 8.11;
(g) to modify, amend or supplement this Indenture in such a manner as to permit the qualification of any indenture
supplemental hereto under the Trust Indenture Act of 1939 as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of the
Trust Indenture Act of 1939;
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(h) to provide for the issuance under this Indenture of Debt Securities in coupon form (including Debt Securities registrable as to
principal only) and to provide for exchangeability of such Debt Securities with Debt Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(i) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or
elimination shall become effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(j) to establish the form of the Debt Securities of a series and to provide for the issuance of Debt Securities of a
series, as permitted by Section 3.01, and to set forth the terms thereof.
The Trustee is hereby required to join with the Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the
Trustee without the consent of the Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 11.02.
Section 11.02 Supplemental Indentures
with Consent of Holders. With the consent (evidenced as provided in Section 9.01) of the Holders of greater than 50% in aggregate principal amount of the Outstanding Debt Securities of each series affected by such supplemental indenture
(each such series voting as a single and separate class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of
the Debt Securities of each series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holders of all of the Outstanding Debt Securities of each series affected, (a) change the Stated Maturity
of the principal of, or any premium or installment of interest on, any Debt Security of such series or make the principal thereof or interest or premium thereon payable in any coin or currency other than that provided in the Debt Securities of such
series; (b) reduce the principal amount of, or the rate, or modify the calculation of such rate, of interest on, or any premium payable upon the redemption of, any Debt Security of such series; (c) reduce the amount of the principal of any Original
Issue Discount Debt Security that would be due and payable upon a declaration of acceleration of the maturity thereof or the amount thereof provable in bankruptcy; (d) change the redemption provisions of any Debt Security in a manner adverse to
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the rights of the Holders thereof or adversely affect the right of repayment at the option of any Holder of any Debt Security of such series; (e) change the
Place of Payment or the coin or currency in which the principal of, any premium or interest on any Debt Security of such series is payable; (f) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity of any
Debt Security of such series or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of any Holder, on or after the repayment date; (g) make any change that adversely affects the right to convert or
exchange any Debt Security into or for common shares or preferred shares or other securities, cash or property in accordance with its terms, (h) amend Sections 5.02, 5.03 and 5.04 in any manner that is materially adverse to the rights of Holders of any
series of Debt Securities or (i) reduce the percentage of Debt Securities of such series, the Holders of which are required to: (i) consent to any supplemental indenture, (ii) rescind and annul a declaration that the Debt Securities of such series are
due and payable as a result of the occurrence of an Event of Default, (iii) waive any past Event of Default and its consequences, or (iv) waive compliance with the provisions of this Indenture or with any additional covenant, agreement or condition
contained in a Board Resolution or Officers’ Certificate establishing such series of Debt Securities, any indenture supplemental hereto applicable to such series or any Debt Security of such series.
Upon the Trustee’s receipt of a Company Request, accompanied by a copy of a Board Resolution certified by its Secretary
or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of Debt Securities 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.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for the consent of the Holders of Debt Securities under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 11.03 Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Eleven, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Debt Securities 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.
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Section 11.04 Notation on Debt Securities. Debt
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eleven may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.
If the Company or the Trustee shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Outstanding Debt Securities of such series.
Section 11.05 Evidence of Compliance of
Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and 8.02, shall receive, and shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Eleven and is authorized and permitted by this Indenture.
ARTICLE 12
CONSOLIDATION, MERGER, SALE AND CONVEYANCE
Section 12.01 Company May Consolidate on
Certain Terms. Nothing contained in this Indenture or in any of the Debt 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 or lease of all or substantially all of the property of the Company to any other Person (whether or not
affiliated with the Company) authorized to acquire and operate the same; provided, however, and the Company hereby covenants and agrees, that any such consolidation, merger, sale, conveyance or lease shall be upon the condition that (a) immediately
after such consolidation, merger, sale, conveyance or lease, the Person (whether the Company or such other Person) formed by or surviving any such consolidation or merger, or to which such sale, conveyance or lease shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and conditions of this Indenture to be kept or performed by the Company; and (b) the due and punctual payment of the principal of and premium, if any, and interest on all of the
Debt Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by the Person (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the Person which shall have acquired or leased
such property.
Section 12.02 Successor Entity to be
Substituted. In case of any such consolidation, merger, sale, conveyance or lease and upon the assumption by the successor Person, 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 and premium, if any, and interest on all of the Debt Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to performed or observed by
the Company, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and (except in the event of a conveyance by way of lease) the predecessor Person
shall be relieved of any further obligation under this Indenture and the Debt Securities.
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In case of any such consolidation, merger, sale, conveyance or lease such changes in phraseology and form (but not in substance) may be
made in the Debt Securities thereafter to be issued as may be appropriate.
Section 12.03 Opinion of Counsel to Be
Given to the Trustee. The Trustee, subject to Sections 8.01 and 8.02, shall receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale conveyance or lease and any such assumption complies with the
provisions of this Article Twelve and that all conditions precedent herein provided relating to such transactions have been complied with.
ARTICLE 13
SATISFACTION, DISCHARGE AND DEFEASANCE OF INDENTURE
Section 13.01 Satisfaction, Discharge and
Legal Defeasance of Debt Securities of any Series. The Company shall be deemed to have paid and discharged the entire indebtedness on all the Debt Securities of a series, the provisions of this Indenture (except as to (x) the rights of
Holders of Debt Securities of such series to receive, from the money, in the currency required, and Government Obligations deposited with the Trustee pursuant to Section 13.02(a) or the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and any installment of principal of (and premium, if any) or interest on such Debt Securities on the Stated Maturities thereof or upon the Redemption Dates for Debt Securities
required to be redeemed pursuant to any mandatory sinking fund or analogous provisions relating to Debt Securities of that series or pursuant to any call for redemption relating to Debt Securities of that series, (y) the Company’s rights and
obligations with respect to such Debt Securities under Sections 3.06, 3.07, 5.01, 5.02, 5.03, 5.04, 8.06, 8.10, 8.11, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and immunities of the Trustee with respect to the Debt Securities of such
series) as it relates to such Debt Securities shall no longer be in effect, and the Trustee, at the expense of the Company, shall, upon Company Request, execute proper instruments acknowledging the same if:
(a) (1) all Debt Securities of such series therefor authenticated and delivered (other than (A) Debt Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.07 and (B) Debt Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Sections 13.03 and 13.04) have been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid in the currency required all other sums payable under this Indenture in
respect of the Debt Securities of such series, including all amounts owing to the Trustee under Section 8.06; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction of the entire indebtedness of all Debt Securities of any such series and the discharge of the Indenture as it relates to such Debt Securities have been complied with; or
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(b) (1) all such Debt Securities of such series not theretofore delivered to the Trustee for cancellation (A) have become due and
payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense of the Company;
(2) the condition described in paragraph (a) of Section 13.02 has been satisfied; and
(3) the conditions described in paragraphs (a)(2) and (a)(3) of this Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in Section 13.02 and paragraph (a)(2) of this Section 13.01 have been satisfied; and
(2) the Company has delivered to the Trustee an opinion of a nationally-recognized independent tax counsel confirming that
the Company shall have received from, or there shall have been published by, the United States Internal Revenue Service a ruling, or since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case, to
the effect that, and based thereon such opinion of counsel will confirm that, Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the defeasance
contemplated by this paragraph (c) of this Section 13.01 and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred.
Section 13.02 Covenant Defeasance of Debt
Securities of any Series. The provisions of this Indenture (except as to (x) the rights of Holders of Debt Securities of any series to receive, from the money, in the currency required, and Government Obligations deposited with the
Trustee pursuant to paragraph (a) below or the interest and principal received by the Trustee in respect of such Government Obligations, payment of the principal of (and premium, if any) and any installment of principal of (and premium, if any) or
interest on such Debt Securities on the Stated Maturities thereof or upon the Redemption Dates for Debt Securities required to be redeemed pursuant to any mandatory sinking or analogous provisions relating to Debt Securities of that series or pursuant
to any call for redemption relating to Debt Securities of that series; (y) the Company’s rights and obligations with respect to such Debt Securities under Sections 3.06, 3.07, 5.01, 5.02, 5.03, 5.04, 6.01, Article Seven (other than subsection (d) of
Section 7.01, to the extent relating to the covenants defeased hereby), Sections 8.06, 8.10, 8.11, 13.03, and 13.04; and (z) the rights, powers, trusts, duties and immunities of the Trustee with respect to the Debt Securities of such series) as it
relates to Debt Securities of any series shall no longer be in effect, and the Trustee, at the expense of the Company shall, upon Company Request, execute proper instruments acknowledging the same if:
(a) the Company has irrevocably (subject to Section 13.04) deposited or caused to be deposited with the Trustee as trust
funds in trust and specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Debt Securities of such series (1) Dollars or Foreign Currency, as applicable, in an amount, or (2) Government Obligations
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which through the payment of interest and principal in respect thereof in accordance with their terms will provide on or before the due date of any payment in
respect of such series of Debt Securities funds in an amount, or (3) a combination thereof, sufficient, after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, which opinion need only be provided if Government Obligations shall have been deposited, to pay and discharge the principal of (and premium, if any)
and each installment of principal (and premium, if any) and interest on the Outstanding Debt Securities of that series to the Stated Maturity of such principal or installment of principal or interest or to the Redemption Dates for Debt Securities
required to be redeemed pursuant to any mandatory sinking fund or analogous provisions relating to Debt Securities of that series or pursuant to any call for redemption relating to Debt Securities of that series on each day on which such payments are
due and payable in accordance with the terms of the Indenture and such Debt Securities;
(b) no Event of Default or event which with notice or lapse of time would become an Event of Default shall have occurred
and be continuing on the date of the deposit referred to in paragraph (a) of this Section 13.02 or, insofar as an Event of Default described in paragraph (g) or (h) of Section 7.01 are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day following the expiration date of the longest preference period applicable to the Company in respect of the deposit (and this condition will not be deemed satisfied until the expiration of
such period; provided, however, that should this condition fail to be satisfied on or before such 91st day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such deposit to the Company);
(c) the interest of the Holders in such deposit shall have been duly perfected under the applicable provisions of the
applicable Uniform Commercial Code;
(d) such defeasance shall not (A) cause the Trustee to have a conflicting interest as defined in Section 8.08 or for
purposes of the Trust Indenture Act of 1939 with respect to any securities of the Company or (B) result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of
1940, as amended;
(e) such defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it is bound;
(f) the Company has delivered to the Trustee an opinion of counsel of a nationally-recognized independent tax counsel
confirming that the Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated by this Section 13.02 and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
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(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided relating to the defeasance contemplated by this Section have been complied with.
Section 13.03 Application of Trust Funds;
Indemnification. (a) Subject to the provisions of Section 13.04, all money and Government Obligations deposited with the Trustee pursuant to Sections 13.01 or 13.02, and all money received by the Trustee in respect of Government
Obligations deposited with the Trustee, shall be held in trust and applied by it, in accordance with the provisions of the Debt Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as
its own paying agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money and Government Obligations have been deposited with or received by the Trustee as
contemplated by Sections 13.01 or 13.02.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against Government Obligations deposited pursuant to Sections 13.01 or 13.02 or the interest and principal received in respect of such obligations, other than any such tax, fee or other charge payable by or on behalf of Holders. The Company shall be
entitled to prompt notice of an assessment or the commencement of any proceeding for which indemnification may be sought hereunder and, at its election, to contest such assessment or to participate in, assume the defense of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any Government Obligations or
money held by it as provided in Sections 13.01 or 13.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, which opinion need only be provided
if Government Obligations shall have been deposited, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such obligations or money were deposited or received.
Section 13.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent for payment of the principal of and premium, if any, or interest on Debt Securities and not applied but remaining unclaimed by the Holders of Debt Securities for two years after the
date upon which the principal of and premium, if any, or interest on such Debt Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such paying agent on Company Request; and the Holder of
any of the Debt Securities entitled to receive such payment shall thereafter look only to the Company for any payment thereof and all liability of the Trustee or such paying agent with respect to such moneys shall thereupon cease.
Section 13.05 Reinstatement.
If the Trustee is unable to apply any money or Government Obligations in accordance with Sections 13.01 or 13.02 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company’s obligations under this Indenture and the Debt Securities shall be revived and reinstated as though no deposit had occurred pursuant to Sections 13.01 or 13.02 until such time as the Trustee is
permitted to apply all such money or Government Obligations in accordance with Sections 13.01 or 13.02;
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provided that, if the Company has made any payment of principal of or interest on the Debt Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Debt Securities to receive such payment from the money or Government Obligations held by the Trustee.
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01 Indenture and Debt
Securities Solely Obligations of the Company. No recourse under or upon any obligation, covenant or agreement of this Indenture, any supplemental indenture, or of any Debt Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, organizer, stockholder, member, owner, officer, director, manager or employee, as such, past, present or future, of the Company or any Subsidiary or of any predecessor or successor Person, either directly
or through the Company, 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
obligations of the Company, and that no such personal liability whatever shall attach to, or is or shall be incurred by, any incorporator, organizer, stockholder, member, owner, officer, director, manager or employee, 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 Debt Securities or implied
thereby; and that any and all such personal liability, 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, organizer, stockholder, member, owner, officer,
director, manager or employee, 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 Debt Securities or implied thereby,
are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Debt Securities.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding on
Successors of the Company. All of the covenants, stipulations, promises and agreements in this Indenture contained by the Company shall bind its successors and assigns whether so expressed or not.
Section 15.02 Indenture for Sole Benefit
of Parties and Holders of Debt Securities. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give or be construed to give to any Person, firm or corporation, other than the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt 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, subject to the provisions of Articles Twelve and Fourteen, for the sole benefit of the parties hereto, any agent of the Trustee or the Company under this Indenture and the Holders of the Debt Securities.
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Section 15.03 Addresses for Notices. Any notice
or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Debt Securities on the Company may be given or served by being deposited, registered or certified mail postage
prepaid, in a post office letter box in the United States addressed (until another address is filed by the Company with the Trustee) to the Company, Kingstone Companies, Inc., 15 Joys Lane, Kingston New York 12401, Telecopier No.: , Attention:
, with a copy to , Telecopier No.: , Attention: . Any notice, direction, request or demand by any Holder of a Debt Security or the Company 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, addressed to the attention of its Corporate Trust Department. Any notice, report or other instrument required by any of the provisions of this Indenture to be given by the Trustee
to the Holders of Debt Securities of any or all series shall be deemed to have been sufficiently given, for all purposes, when mailed by first class mail.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail,
facsimile transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent to the transmission thereof, shall provide the originally executed instructions
or directions to the Trustee in a timely manner and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. The Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions or directions notwithstanding that such instructions or directions conflict or are inconsistent with a subsequent written
instruction or direction or if the subsequent written instruction or direction is never received. The party providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid,
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception
and misuse by third parties.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Debt Security Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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Section 15.04 Contract; Waiver of Trial by Jury.
This Indenture and the Debt Securities shall for all purposes be construed in accordance with and governed by the laws of the State of . EACH OF THE COMPANY, THE TRUSTEE, AND THE HOLDERS HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE DEBT SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.05 Evidence of Compliance with
Conditions Precedent. Upon any request 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, if any
(including any covenant, compliance with which constitutes a condition 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 document is specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 15.06 Legal Holidays.
In any case where the date of maturity of interest on or principal of or premium, if any, on any series of Debt Securities or the date fixed for redemption or repayment of any Debt Security or Debt Securities will be a legal holiday or a day on which
banking institutions are legally authorized or obligated to close in New York, New York or any other location where a paying agent appointed pursuant to Section 5.02 is located, then payment of such interest on or principal of and premium, if any, on
such Debt Securities need not be made by such paying agent on such date but may be made by such paying agent on the next succeeding day that is not a day in such location that is either a legal holiday or a day on which banking institutions are legally
authorized or obligated to close, with the same force and effect as if made on such date of maturity or the date fixed for redemption or repayment and no interest shall accrue for the period from and after such prior date.
Section 15.07 Trust Indenture Act of 1939
to Control. If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317 of the Trust Indenture Act of 1939, by the operation of Section 318(c) thereof, such imposed duties shall
control, except as, and to the extent, expressly excluded from this Indenture, as permitted by the Trust Indenture Act of 1939. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 15.08 Table of Contents, Headings. The
table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 15.09 Determination of Principal
Amount. In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, (a) the principal amount of an Original Issue Discount Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 7.01, (b) the principal amount of any Debt Securities denominated in a Foreign Currency that shall be deemed to
be Outstanding for such purposes shall be determined by converting the Foreign Currency into Dollars at the Market Exchange Rate as of the date of such determination and (c) the principal amount of any Indexed Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal face amount of such Indexed Debt Security at original issuance, unless otherwise provided in or pursuant to this Indenture.
Section 15.10 Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original and such counterparts shall together constitute but one and the same instrument. hereby accepts the trusts in this Indenture declared and provided, upon
the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, KINGSTONE COMPANIES, INC. has caused this Indenture to be executed by its , and has caused this
Indenture to be executed by one of its officers, as of the day and year first written above.
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EXHIBIT 5.1
April 5, 2024
Kingstone Companies, Inc.
15 Joys Lane
Kingston, New York 12401
Ladies and Gentlemen:
We have acted as counsel to Kingstone Companies, Inc., a Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement"), including the prospectus constituting a part thereof (the "Prospectus"), filed by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act") relating to the registration by the Company for the issue and sale by the Company from time to time of up to $50,000,000 offering price of (a) shares of
the Company's common stock, $0.01 par value per share (the "Common Stock"), (b) shares of the Company's preferred stock, $0.01 par value per share (the "Preferred Stock"), (c) debt securities of the Company ("Debt Securities"), (d) warrants for the
purchase of Common Stock, Preferred Stock and/or Debt Securities (the “Warrants”) and (e) units comprised of Common Stock, Preferred Stock, Debt Securities and/or Warrants (the “Units”). The Prospectus provides that it may be supplemented
in the future by one or more prospectus supplements (each, a "Prospectus Supplement"). This opinion is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K, as promulgated by the Commission.
In connection with this opinion, we have examined the following documents: (i) the Restated Certificate of Incorporation and the By-Laws of
the Company, (ii) the Registration Statement, and (iii) minutes of a meeting of the Board of Directors of the Company relating to the filing of the Registration Statement. We have also examined such other instruments and documents as we deemed
relevant under the circumstances.
For purposes of this opinion, we have assumed (i) the authenticity of all documents submitted to us as original, (ii) the conformity to the
originals of all documents submitted as certified, photostatic or facsimile copies and the authenticity of the originals, (iii) the legal capacity of natural persons, (iv) the due authorization, execution and delivery of all documents by all parties
and the validity and binding effect thereof and (v) the conformity to the proceedings of the Board of Directors of all minutes of such proceedings. We have also assumed that the corporate records furnished to us by the Company include all corporate
proceedings taken by the Company to date.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, it is our opinion
that:
(a) when an issuance of Common Stock has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and
payment therefor in an amount not less than the par value thereof in the manner contemplated by the Prospectus or any Prospectus Supplement, and by such corporate action, and in total amounts and numbers of shares that do not exceed the respective
total amounts and numbers of shares (i) available under the Restated Certificate of Incorporation, and (ii) authorized by the Board of Directors in connection with the offering contemplated by the Prospectus or any Prospectus Supplement, such shares
of Common Stock will be validly issued, fully paid and nonassessable;
(b) when a series of Preferred Stock has been duly established in accordance with the terms of the Company's Restated Certificate of
Incorporation and authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the Prospectus or any Prospectus Supplement and
by such corporate action, and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers of shares (i) available under the Restated Certificate of Incorporation, and (ii) authorized by the Board of Directors in
connection with the offering contemplated by the Prospectus or any Prospectus Supplement, such shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable;
(c) with respect to the Debt Securities, when (i) the Debt
Securities indenture and any and all applicable supplements thereto (the "Indenture") have been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, (ii) the Board of Directors has taken
all necessary corporate action to approve the issuance and establish the terms of such Debt Securities, the terms of the offering and related matters, (iii) the Debt Securities have been duly executed and authenticated in accordance with the terms
of the Indenture, and (iv) the Debt Securities have been issued and sold in the manner contemplated by the Registration Statement and in accordance with the Indenture, such Debt Securities (including any Debt Securities duly issued upon conversion,
exchange or exercise of any other security in accordance with the terms of such security or the instrument governing such security providing for such conversion, exchange or exercise as approved by the Board of Directors) will be binding
obligations of the Company and entitled to the benefits of the Indenture, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting or relating to the rights of
creditors generally, by general principles of equity (regardless of whether considered in a proceeding in equity or at law), and by requirements of reasonableness, good faith and fair dealing;
(d) when an issuance of Warrants has been duly
authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in the manner contemplated by the Prospectus or any Prospectus Supplement, and by such corporate action, and in numbers of Warrants that do not
exceed the numbers of Warrants authorized by the Board of Directors in connection with the offering contemplated by the Prospectus or any Prospectus Supplement, such Warrants will be validly and binding obligations of the Company; and
(e) when an issuance of Units has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and
payment therefor in the manner contemplated by the Prospectus or any Prospectus Supplement, and by such corporate action, and in numbers of Units that do not exceed the numbers of Units authorized by the Board of Directors in connection with the
offering contemplated by the Prospectus or any Prospectus Supplement, such Units will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and reference to our firm
under the heading "Legal Matters" in the Prospectus. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission
thereunder.
The opinion expressed herein is limited to the Delaware General Corporate Law, as currently in effect, and we express no opinion as to the
effect of the laws of any other jurisdiction.
This opinion is as of the date hereof, and we do not undertake, and hereby disclaim, any obligation to advise you of any changes in any of
the matters set forth herein.
We are rendering this opinion only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
This opinion is for your exclusive use only and is to be utilized and relied upon only in connection with the matters expressly set forth
herein.
Very truly yours,
/s/ Certilman Balin Adler & Hyman, LLP
EXHIBIT 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement of Kingstone Companies, Inc. on Form S-3 of our report dated April 1, 2024 with respect to our audits of the consolidated financial statements of
Kingstone Companies, Inc. and Subsidiaries as of December 31, 2023 and 2022 and for the years then ended, appearing in the Annual Report on Form 10-K of Kingstone Companies, Inc. for the year ended December 31, 2023. We also consent to the reference to
our firm under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Marcum LLP
Marcum LLP
Hartford, CT
April 5, 2024