As filed with the Securities and Exchange
Commission on February 28, 2022
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JETBLUE AIRWAYS CORPORATION
(Exact name of Registrant as specified in
its charter)
| Delaware |
87-0617894 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification Number.) |
27-01 Queens Plaza North
Long Island City, New York 11101
(718) 286-7900
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Brandon Nelson
General Counsel and Corporate Secretary
27-01 Queens Plaza North
Long Island City, New York 11101
(718) 286-7900
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Lona Nallengara
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
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 reinvestment plans, check the following box: þ
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. þ
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.
| Large accelerated filer þ |
Accelerated filer ☐ |
| Non-accelerated filer ☐ |
Smaller reporting company ☐ |
| |
Emerging growth company ☐ |
If an emerging growth company, indicate by a check mark if registrant has
elected not to use the extended transition period of complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of Securities Act. ☐
EXPLANATORY NOTE
This registration statement consists of two separate prospectuses.
The first prospectus relates to the offer and sale from time to time by JetBlue Airways Corporation, or one or more selling security holders,
of common stock, preferred stock, debt securities, depositary shares, warrants, stock purchase contracts, stock purchase units and subscription
rights, and the second prospectus relates to the offer and sale from time to time by JetBlue Airways Corporation of pass through certificates.
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Stock Purchase Contracts
Stock Purchase Units
Subscription Rights
JetBlue Airways Corporation, or one or more
selling security holders to be identified in a prospectus supplement, may offer and sell the securities listed above from time to time,
together or separately, in one or more classes or series, in amounts, at prices and on terms that we will determine at the time of offering.
We will provide the specific terms of any securities we actually offer for sale in supplements to this prospectus. A prospectus supplement
may also add, change or update information contained in this prospectus.
You should read this prospectus and any applicable
prospectus supplement carefully before you purchase any of our securities. THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
We may offer and sell the securities directly
to you, through agents we select, or through underwriters or dealers we select. If we use agents, underwriters or dealers to sell the
securities, we will name them and describe their compensation in a prospectus supplement. The net proceeds we expect to receive from such
sales will be set forth in the prospectus supplement.
Our common stock is traded on the Nasdaq Global Select
Market under the symbol “JBLU.”
Investing in our securities involves risks. See
the “Risk Factors” section of this prospectus. You should carefully consider these risk factors and risks before investing
in any of our securities.
Neither the Securities and Exchange Commission nor
any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of the prospectus is February 28,
2022.
TABLE OF CONTENTS
Page
You should rely only on the information contained in this prospectus,
any applicable prospectus supplement, any related free writing prospectus used by us (which we refer to as a “company free writing
prospectus”), the documents incorporated by reference in this prospectus and any applicable prospectus supplement or any other information
to which we have referred you. We have not authorized anyone to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. This prospectus, any applicable prospectus supplement and any related company
free writing prospectus do not constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this
prospectus, any applicable prospectus supplement and any related company free writing prospectus in any jurisdiction to or from any person
to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the
information contained in this prospectus or in any prospectus supplement or any document incorporated by reference is accurate as of any
date other than the date on the front cover of the applicable document. Neither the delivery of this prospectus, any applicable prospectus
supplement and any related company free writing prospectus nor any distribution of securities pursuant to this prospectus or any applicable
prospectus supplement shall, under any circumstances, create any implication that there has been no change in our business, financial
condition, results of operations and prospects since the date of this prospectus or such prospectus supplement.
About
This Prospectus
This prospectus is part of a registration statement
we filed with the Securities and Exchange Commission, or SEC, utilizing the “shelf” registration process. Under the shelf
registration process, using this prospectus, together with a prospectus supplement, we, or certain of our selling security holders, may
sell from time to time any combination of the securities described in this prospectus in one or more offerings. This prospectus provides
you with a general description of the securities we or a selling security holder may offer. Each time we, or under certain circumstances,
our selling security holders, sell securities, we will provide a prospectus supplement and, if necessary, a pricing supplement, that will
contain specific information about the terms of that offering. The prospectus supplement and, if necessary, the pricing supplement, may
also add to, update or change information contained in this prospectus. Accordingly, to the extent inconsistent, the information in this
prospectus will be deemed to be modified or superseded by any inconsistent information contained in a prospectus supplement or a pricing
supplement. You should read carefully this prospectus, the applicable prospectus supplement and any pricing supplement, together with
the additional information incorporated by reference in this prospectus described below under “Where You Can Find More Information”
before making an investment in our securities.
The prospectus supplement and, if necessary,
the pricing supplement, will describe: the terms of the securities offered, any initial public offering price, the price paid to us for
the securities, the net proceeds to us, the manner of distribution and any underwriting compensation, and the other specific material
terms related to the offering of the securities. The prospectus supplement may also contain information, where applicable, about material
United States federal income tax considerations relating to the securities. For more detail on the terms of the securities, you should
read the exhibits filed with or incorporated by reference in our registration statement of which this prospectus forms a part.
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 the documents referred to herein have been filed, or will
be filed or 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 “Where You Can Find More Information.”
In this prospectus, we use the terms “JetBlue,”
“we,” “us” and “our” to refer to JetBlue Airways Corporation and our consolidated subsidiaries.
JETBLUE and JETBLUE AIRWAYS are registered service
marks of JetBlue Airways Corporation in the United States and other countries. This prospectus also contains trademarks and tradenames
of other companies.
Where
You Can Find More Information
We file annual, quarterly and current reports,
proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Our SEC
filings are available from the SEC’s Internet site at http://www.sec.gov, which contains reports, proxy and information statements,
and other information regarding issuers, like us, who file reports electronically with the SEC.
The SEC allows us to “incorporate by reference”
into this prospectus the information we file with them, which means that we can disclose important information to you by referring you
to those documents. Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein, or in any subsequently filed document which also is incorporated
by reference herein, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the documents listed below (excluding
any portions of such documents that have been “furnished” but not “filed” for purposes of the Exchange Act):
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 22, 2022; |
| · | the information specifically incorporated by reference into our Annual Report on Form 10-K from our definitive proxy statement on
Schedule 14A, filed on March 29, 2021; and |
| · | the description of our common stock contained
in Exhibit 4.18 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 22, 2022, and any amendment or report filed with the SEC for the purpose of updating the description. |
All documents we file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before all of the securities offered by this prospectus
are sold are incorporated by reference in this prospectus from the date of filing of the documents, except for information furnished under
Item 2.02 and Item 7.01 of Form 8-K, which is not deemed filed and not incorporated by reference herein. Information that we file with
the SEC will automatically update and may replace information in this prospectus and information previously filed with the SEC.
You may obtain any of these incorporated documents
from us without charge, excluding any exhibits to these documents unless the exhibit is specifically incorporated by reference in such
document, by requesting them from us in writing or by telephone at the following address:
JetBlue Airways Corporation
27-01 Queens Plaza North
Long Island City, New York 11101
Attention: Legal Department
(718) 286-7900
Documents may also be available on our website at http://investor.jetblue.com.
Information contained on our website does not constitute part of this prospectus.
Special
Note About Forward-Looking Statements
Statements in this prospectus, any applicable
prospectus supplement or pricing supplement, any related company free writing prospectus and in documents incorporated by reference in
this prospectus contain various forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended,
or the Securities Act, and Section 21E of the Exchange Act, which represent our management’s beliefs and assumptions concerning
future events. These statements are intended to qualify for the “safe harbor” from liability established by the Private Securities
Litigation Reform Act of 1995. When used in this prospectus and in documents incorporated herein by reference, the words “expects,”
“plans,” “anticipates,” “indicates,” “believes,” “forecast,” “guidance,”
“outlook,” “may,” “will,” “should,” “seeks,” “targets” and similar
expressions are intended to identify forward-looking statements. Forward-looking statements involve risks, uncertainties and assumptions,
and are based on information currently available to us. Actual results may differ materially from those expressed in the forward-looking
statements due to many factors, including, without limitation, the coronavirus (“COVID-19”) pandemic including new and existing
variants, and the outbreak of any other disease or similar public health threat that affects travel demand or behavior; restrictions on
our business related to the financing we accepted under various federal government support programs such as the Coronavirus Aid, Relief,
and Economic Security Act, the Consolidated Appropriations Act, and the American Rescue Plan Act; our significant fixed obligations and
substantial indebtedness; risk associated with execution of our strategic operating plans in the near-term and long-term; the recording
of a material impairment loss of tangible or intangible assets; our extremely competitive industry; volatility in financial and credit
markets which could affect our ability to obtain debt and/or lease financing or to raise funds through debt or equity issuances; volatility
in fuel prices, maintenance costs and interest rates; our reliance on high daily aircraft utilization; our ability to implement our growth
strategy; our ability to attract and retain qualified personnel and maintain our culture as we grow; our reliance on a limited number
of suppliers, including for aircraft, aircraft engines and parts and vulnerability to delays by those suppliers; our dependence on the
New York and Boston metropolitan markets and the effect of increased congestion in these markets; our reliance on automated systems and
technology; the outcome of the lawsuit filed by the Department of Justice and certain state Attorneys General against us related to our
Northeast Alliance entered into with American Airlines, our being subject to potential unionization, work stoppages, slowdowns or increased
labor costs; our presence in some international emerging markets that may experience political or economic instability or may subject
us to legal risk; reputational and business risk from information security breaches or cyber-attacks; changes in or additional domestic
or foreign government regulation, including new or increased tariffs; changes in our industry due to other airlines' financial condition;
acts of war or terrorism; global economic conditions or an economic downturn leading to a continuing or accelerated decrease in demand
for air travel; adverse weather conditions or natural disasters; and external geopolitical events and conditions. It is routine for our
internal projections and expectations to change as the year or each quarter in the year progresses, and therefore it should be clearly
understood that the internal projections, beliefs and assumptions upon which we base our expectations may change prior to the end of each
quarter or year.
Given the risks and uncertainties surrounding forward-looking
statements, you should not place undue reliance on these statements. You should understand that many important factors, in addition to
those discussed or incorporated by reference in this prospectus, any applicable prospectus supplement or pricing supplement, and any related
company free writing prospectus could cause our results to differ materially from those expressed in the forward-looking statements. Potential
factors that could affect our results include those described in this prospectus under “Risk Factors.” In light of these risks
and uncertainties, the forward-looking events discussed or incorporated by reference in this prospectus might not occur. Other than as
required by law, we undertake no obligation to update or revise forward-looking statements, whether as a result of new information, future
events, or otherwise.
Jetblue
Airways Corporation
JetBlue Airways Corporation, or JetBlue, is
New York’s Hometown Airline®. As of December 31, 2021, JetBlue served
over 100 destinations across the United States, the Caribbean and Latin America, and between New York and London.
JetBlue was incorporated in Delaware in August 1998
and commenced service on February 11, 2000. We believe our differentiated product and culture combined with our competitive cost
structure enables us to compete effectively in the high-value geographies we serve. Looking to the future, we plan to continue to grow
in our high-value geographies, invest in industry leading products and provide award-winning service by our 22,000+
dedicated employees, whom we refer to as crewmembers. Going forward, we believe we will continue to differentiate ourselves from
other airlines, enabling us to continue to attract a greater mix of customers, and to drive further profitable growth. We are focused
on delivering solid results for our stockholders, our customers, and our crewmembers.
Our principal executive offices are located
at 27-01 Queens Plaza North, Long Island City, New York 11101 and our telephone number is (718) 286-7900.
Risk
Factors
Investing in our securities involves risks.
See the “Risk Factors” section of our Annual Report on Form 10-K for the year ended December 31, 2021, and any other reports
that we may file from time to time with the Securities and Exchange Commission, and all other information contained or incorporated by
reference into this prospectus, as updated by our subsequent filings under the Exchange Act. The prospectus supplement relating to a particular
offering of pass through trust certificates may discuss certain risks of investing in those securities. You should carefully consider
these risk factors and risks before investing in any of our securities. See “Where You Can Find More Information.”
Use
of Proceeds
Except as otherwise may be described in an applicable
prospectus supplement, we intend to use the net proceeds from the sale of the securities offered hereunder for general corporate purposes,
including among other possible uses, the acquisition of aircraft and construction of facilities on or near airports, the repayment or
repurchase of short-term or long-term debt or lease obligations and other capital expenditures. We may also use the proceeds for temporary
investments until we need them for general corporate purposes. We will not receive any of the proceeds from the sale of securities by
any selling security holders who may be named in a prospectus supplement.
Dividend
Policy
We have paid no cash dividends on our common
stock and have no current intention of doing so. Any future determination to pay cash dividends will be at the discretion of our board
of directors, subject to applicable limitations under Delaware law, and will be dependent upon our results of operations, financial condition,
and other factors deemed relevant by our board of directors.
Description
of Common and Preferred Stock
The following description of our common stock
and preferred stock in this prospectus is a summary. When we, or one or more selling security holders to be identified in a prospectus
supplement, offer to sell these securities, we will summarize in a prospectus supplement the particular terms of such securities that
we believe will be the most important to your decision to invest in such securities. As the terms of such securities may differ from the
summary in this prospectus, the summary in this prospectus is subject to and qualified by reference to the summary in such prospectus
supplement, and you should rely on the summary in such prospectus supplement instead of the summary in this prospectus if the summary
in such prospectus supplement is different from the summary in this prospectus. You should keep in mind, however, that it is our amended
and restated certificate of incorporation and any amendments thereto (our “amended and restated certificate of incorporation”)
and our amended and restated bylaws (our “bylaws”) that are incorporated by reference into the registration statement of which
this prospectus is a part or may be incorporated by reference in this prospectus or any prospectus supplement, and the statutory and common
law, including the Delaware General Corporation Law (the “DGCL”), and not the summaries in this prospectus or such prospectus
supplement, which define your rights as a holder of such securities. There may be other provisions in our amended and restated certificate
of incorporation and our bylaws that are also important to you. You should carefully read these documents for a full description of the
terms of such securities. See “Where You Can Find More Information” for information on how to obtain copies of our amended
and restated certificate of incorporation and our bylaws.
The summary below and that contained in any
prospectus supplement is qualified in its entirety by reference to our amended and restated certificate of incorporation and bylaws.
Authorized Capitalization
As of the date of this prospectus, our capital
structure consists of 900,000,000 authorized shares of common stock, par value $0.01 per share, and 25,000,000 shares of preferred stock,
par value $0.01 per share. As of January 31, 2022, 320,191,156 shares of our common stock were outstanding, no shares of preferred stock
were outstanding, and 21,808,049 shares of our common stock were reserved for issuance under our equity compensation plans. Our common
stock currently is listed on the Nasdaq Global Select Market under the trading symbol “JBLU”. No shares of our preferred stock
are outstanding as of the date hereof.
Common Stock
The holders of our common stock are entitled
to such dividends as our board of directors may declare from time to time from legally available funds subject to the preferential rights
of the holders of any shares of our preferred stock that we may issue in the future.
The holders of our common stock are entitled
to one vote per share on any matter to be voted upon by stockholders, subject to the restrictions described below under the caption “Anti-Takeover
Effects of Certain Provisions of Delaware Law and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
— Limited Voting by Foreign Owners.”
Subject to the foregoing, when a quorum is present
at any meeting of stockholders, the vote of the holders of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the applicable
statutes or of our amended and restated certificate of incorporation, a different vote is required, which shall govern and control the
decision of such question.
Each director shall be elected by the vote of
a majority of the votes cast with respect to the director at any meeting of the stockholders for the election of directors at which a
quorum is present; provided, however, that in the case of a contested election, the directors shall be elected by the vote of a plurality
of the stock present in person or represented by proxy at any such meeting and entitled to vote on the election of directors. A director
may be removed from office with or without cause by the affirmative vote of the holders of a majority of the outstanding shares of voting
stock of JetBlue entitled to vote at an election of directors.
Our bylaws may be amended by the affirmative
vote of holders of at least a majority of the outstanding shares of voting stock of JetBlue entitled to vote at an election of directors.
Upon any voluntary or involuntary liquidation,
dissolution or winding up of our affairs, the holders of our common stock are entitled to share, on a pro rata basis, all assets remaining
after payment to creditors and subject to prior distribution rights of the holders of any shares of preferred stock that we may issue
in the future. All of the outstanding shares of our common stock, and the shares of our common stock offered by this prospectus, are fully
paid and non-assessable.
Preferred Stock
No shares of our preferred stock are currently
outstanding. Under our amended and restated certificate of incorporation, our board of directors, without further action by our stockholders,
is authorized to issue up to 25,000,000 shares of preferred stock in one or more classes or series. The board may fix or alter the rights,
preferences and privileges of the preferred stock, along with any limitations or restrictions, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation preferences of each class or series of preferred stock. The preferred stock could
have voting or conversion rights that could adversely affect the voting power or other rights of holders of our common stock. The issuance
of preferred stock could also have the effect, under certain circumstances, of delaying, deferring or preventing a change of control of
our company.
Anti-Takeover Effects of Certain Provisions of Delaware Law
and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Effect of Delaware Anti-Takeover Statute.
We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a Delaware corporation from engaging
in any business combination with any interested stockholder for a period of three years following the date that the stockholder became
an interested stockholder, unless:
| · | prior to that date, the board of directors of the corporation approved either the business combination or the transaction that resulted
in the stockholder becoming an interested stockholder; |
| · | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
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 of voting stock outstanding (but not the voting stock owned by the interested stockholder) those shares
owned by persons who are directors and also officers and by excluding 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 |
| · | on or subsequent to that date, the business combination is approved by the board of directors of the corporation and authorized at
an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding
voting stock that is not owned by the interested stockholder. |
Section 203 defines “business combination” to include
the following:
| · | any merger or consolidation involving the corporation and the interested stockholder; |
| · | any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
| · | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder; |
| · | any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series
of the corporation beneficially owned by the interested stockholder; or |
| · | the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation. |
In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation, or who beneficially
owns 15% or more of the outstanding voting stock of the corporation at any time within a three year period immediately prior to the date
of determining whether such person is an interested stockholder, and any entity or person affiliated with or controlling or controlled
by any of these entities or persons.
Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws Provisions. Our amended and restated certificate of incorporation and bylaws include provisions that
may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a stockholder
might consider favorable, including a proposal that might result in the payment of a premium over the market price for the shares held
by stockholders. These provisions are summarized in the following paragraphs.
Authorized but Unissued or Undesignated Capital
Stock. Our authorized capital stock consists of 900,000,000 shares of common stock and 25,000,000 shares of preferred stock. The authorized
but unissued (and in the case of preferred stock, undesignated) stock may be issued by the board of directors in one or more transactions.
In this regard, our amended and restated certificate of incorporation grants the board of directors broad power to establish the rights
and preferences of authorized and unissued preferred stock. The issuance of shares of preferred stock pursuant to the board of director’s
authority described above could decrease the amount of earnings and assets available for distribution to holders of common stock and adversely
affect the rights and powers, including voting rights, of such holders and may have the effect of delaying, deferring or preventing a
change in control. The board of directors does not currently intend to seek stockholder approval prior to any issuance of preferred stock,
unless otherwise required by law.
Special Meetings of Stockholders. Our
amended and restated certificate of incorporation and bylaws provide that a special meeting of stockholders shall be called by the Secretary
at the written request(s) of stockholders of record representing at least 20% of the voting power of the outstanding shares of capital
stock of JetBlue entitled to vote. Our bylaws establish procedures with regard to all special meeting requests. Among other requirements,
these procedures provide that any special meeting request must be timely given in writing to our Secretary prior to the period commencing
90 days prior to the one-year anniversary of the date of the immediately preceding annual meeting and ending on the date of the next
annual meeting. The notice must contain certain information specified in the bylaws.
Stockholder Action by Written Consent.
Our amended and restated certificate of incorporation allows stockholders who comply with the requirements set forth in our amended and
restated certificate of incorporation to take certain actions they could take at a meeting of stockholders by written consent. Any person
other than JetBlue seeking to have the JetBlue stockholders authorize or take corporate action by written consent without a meeting is
required to deliver a written notice signed by holders of record of at least twenty-five percent (25%) of the then outstanding shares
of voting stock of JetBlue entitled to vote on the matter and request that a record date be fixed for such purpose.
Notice Procedures. Our bylaws establish
advance notice procedures with regard to all stockholder proposals to be brought before meetings of our stockholders, including proposals
relating to the nomination of candidates for election as directors, the removal of directors and amendments to our amended and restated
certificate of incorporation and bylaws. These procedures provide that notice of such stockholder proposals must be timely given in writing
to our Secretary prior to the meeting. Generally, to be timely, notice must be received at our principal executive offices not less than
90 days nor more than 120 days prior to the one-year anniversary of prior year’s annual meeting. The notice must contain certain
information specified in the bylaws.
Limitation of Director Liability. Our
amended and restated certificate of incorporation and bylaws limit the liability of our directors (in their capacity as directors but
not in their capacity as officers) to us or our stockholders to the fullest extent permitted by Delaware law. Specifically, our amended
and restated certificate of incorporation provides that our directors will not be personally liable for monetary damages for breach of
a director’s fiduciary duty as a director, except for liability:
| · | for any breach of the director duty of loyalty to us or our stockholders; |
| · | for acting in manner involving intentional misconduct or a knowing violation of law or, in failing to act, for acting in a manner
involving intentional misconduct or a knowing violation of law; |
| · | under Section 174 of the DGCL or any amendment thereto, which relates to unlawful payments of dividends or unlawful stock repurchases
or redemptions; or |
| · | for any transaction from which the director derived an improper personal benefit. |
Indemnification Arrangements. Our bylaws
provide that our directors and officers shall be indemnified and provide for the advancement to them of expenses in connection with actual
or threatened proceedings and claims arising out of their status as such to the fullest extent permitted by the DGCL. We have entered
into indemnification agreements with each of our directors and certain of our officers that provide them with rights to indemnification
and expense advancement to the fullest extent permitted under the DGCL.
Limited Voting by Foreign Owners. To
comply with restrictions imposed by federal law on foreign ownership of U.S. airlines, our amended and restated certificate of incorporation
and bylaws restrict voting of shares of our capital stock by non-U.S. citizens. The restrictions imposed by federal law currently require
that no more than 25% of our voting stock be owned by persons who are not U.S. citizens. If non-U.S. citizens at any time own more than
25% of our voting stock, the voting rights of the stock in excess of the 25% shall be automatically suspended. Our bylaws provide that
the failure of non-U.S. citizens to register their shares on a separate stock record, which we refer to as the “foreign stock record,”
would result in a suspension of their voting rights in the event that the aggregate foreign ownership of the outstanding common stock
exceeds the 25% foreign ownership restrictions. Our bylaws further provide that no shares of our capital stock will be registered on the
foreign stock record if the amount so registered would exceed the foreign ownership restrictions imposed by federal law.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Computershare Investor Services. The applicable prospectus supplement will specify the transfer agent and registrar for any shares
of preferred stock we may offer pursuant to this prospectus.
Description
of Debt Securities
The following description, together with the
additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions of the debt
securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the
specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general terms
and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Unless otherwise
specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or
more series.
The debt securities will be issued under an
indenture between us and Wilmington Trust, National Association, as trustee. We have summarized below the material provisions of the indenture.
The summary is not complete. The form of the indenture has been filed as an exhibit to this registration statement and we urge you to
read the indenture and any supplement thereto because these documents, and not the summary, define your rights as a holder of debt securities.
In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions.
Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, “JetBlue,”
“we,” “our” or “us” refer to JetBlue Airways Corporation excluding our subsidiaries, unless expressly
stated or the context otherwise requires.
General
The terms of each series of debt securities
will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution
of our board of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The particular terms of each
series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term
sheet).
We can issue an unlimited amount of debt securities
under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. (Section
2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities
being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
| · | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| · | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
| · | any limit on the aggregate principal amount of the debt securities; |
| · | the date or dates on which the principal of the securities of the series is payable; |
| · | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable
on any interest payment date; |
| · | the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in
respect of the debt securities may be delivered; |
| · | the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
| · | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon
which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| · | the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
| · | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| · | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
| · | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than
the principal amount; |
| · | the currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
| · | the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities
will be made; |
| · | if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other
than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments
will be determined; |
| · | the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined,
if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
| · | any provisions relating to any security provided for the debt securities; |
| · | any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the
debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt
securities; |
| · | any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt
securities; |
| · | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; |
| · | the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion
or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of
the conversion or exchange price and provisions affecting conversion or exchange; and |
| · | any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that
series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of
the securities. (Section 2.2) |
We may issue debt securities that provide for
an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to
the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of
the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and
interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will
provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus
supplement.
Form, Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company (the “Depositary”), or a nominee of the
Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or
a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated
debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities
and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Global Debt Securities and Book-Entry System.
Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary. Unless and until it is exchanged for individual certificates evidencing
securities under the limited circumstances described in the indenture, a global debt security may not be transferred except as a whole
by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or
to a nominee of the successor depositary.
Depositary holds securities that its participants
deposit with Depositary. Depositary also facilitates the settlement among its participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating
the need for physical movement of securities certificates. “Direct participants” in Depositary include securities brokers
and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. Access to the Depositary system
is also available to others (which we sometimes refer to as indirect participants) that clear through or maintain a custodial relationship
with a direct participant, either directly or indirectly. The rules applicable to Depositary and its participants are on file with the
SEC.
So long as the debt securities are in book-entry
form, you will receive payments and may transfer debt securities only through the facilities of the Depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities,
where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated debt securities
may be surrendered for payment, registration of transfer or exchange. We will make payments on book- entry debt securities to the Depositary
or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds.
Certificated Debt Securities. You may transfer
or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. (Section
2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7)
You may effect the transfer of certificated
debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the
certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder
or the issuance by us or the trustee of a new certificate to the new holder.
If the debt securities are issued in definitive
certificated form under the limited circumstances described in the indenture, we will have the option of making payments by check mailed
to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to
the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment,
unless a shorter period is satisfactory to the applicable trustee or other designated party.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities, including the payment of principal, premium, if any,
and interest on such debt securities. The indenture will not limit us from incurring or issuing other unsecured or secured debt and, unless
otherwise indicated in the applicable prospectus supplement, the indenture will not contain any financial covenants. (Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable
prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection
in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in
a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of our properties and assets to, any person (a “successor person”)
unless:
| · | we are the surviving corporation or the successor person (if other than JetBlue) is a corporation organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and |
| · | immediately after giving effect to the transaction, no Default (as defined below) or Event of Default, shall have occurred and be
continuing. |
Notwithstanding the above, any subsidiary of JetBlue may consolidate
with, merge into or transfer all or part of its properties to JetBlue. (Section 5.1)
Events of Default
“Event of Default” means with respect to any series
of debt securities, any of the following:
| · | default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
| · | default in the payment of principal of any security of that series at its maturity; |
| · | default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that
has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the
holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture; |
| · | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of JetBlue; and |
| · | any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus
supplement. (Section 6.1) |
“Default” means any event which is, or after
notice or passage of time or both would be, an Event of Default.
No Event of Default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration
under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to
time.
We will provide the trustee written notice of
any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will
describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect
thereof. (Section 6.1)
If an Event of Default with respect to debt
securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal
amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders),
declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion
of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities
of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately
due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time
after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest,
if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer
you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture will provide that the trustee
may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory
to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power.
(Section 7.1(e)) Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with respect to the debt securities of that series. (Section 6.12)
No holder of any debt security of any series
will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver
or trustee, or for any remedy under the indenture, unless:
| · | that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of
that series; and |
| · | the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request,
and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee
has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7) |
Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any
interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of
payment. (Section 6.8)
The indenture will require us, within 120 days
after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default
or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer
of the trustee, the trustee shall mail to each Securityholder of the securities of that series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default.
The indenture will provide that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event
of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines
in good faith that withholding notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or supplement
the indenture or the debt securities of any series without the consent of any holder of any debt security:
| · | to cure any ambiguity, defect or inconsistency; |
| · | to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
| · | to provide for uncertificated securities in addition to or in place of certificated securities; |
| · | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
| · | to surrender any of our rights or powers under the indenture; |
| · | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
| · | to comply with the applicable procedures of the applicable depositary; |
| · | to make any change that does not adversely affect the rights of any holder of debt securities; |
| · | to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the
indenture; |
| · | to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of
the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
| · | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture
Act. (Section 9.1) |
We may also modify and amend the indenture with
the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by the modifications
or amendments (with the securities of each series voting as a class). We may not make any modification or amendment without the consent
of the holders of each affected debt security then outstanding if that amendment will:
| · | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| · | reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
| · | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
| · | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| · | waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration
of the debt securities of any series by the holders of a majority in aggregate principal amount of the then outstanding debt securities
of that series and a waiver of the payment default that resulted from such acceleration); |
| · | make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
| · | make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to
receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such
payment and to waivers or amendments; or |
| · | waive a redemption payment with respect to any debt security. (Section 9.3) |
Except for certain specified provisions, the
holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities
of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the
outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default
under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or
any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding
debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from
the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture will
provide that, unless otherwise provided by the terms of the applicable series of debt securities, we will be discharged from any and all
obligations in respect of the debt securities of any series (subject to certain exceptions) upon the irrevocable deposit with the trustee,
in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S.
Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest
and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the
United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders
of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The
indenture will provide that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with
certain conditions:
| · | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement;
and |
| · | any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities
of that series (“covenant defeasance”). |
The conditions include:
| · | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency
other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the
payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and
interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments
in accordance with the terms of the indenture and those debt securities; and |
| · | delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize
income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance and will be subject to United
States 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 covenant
defeasance had not occurred. (Section 8.4) |
In the event covenant defeasance occurs, certain events (not including
non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under “Events of Default” will no longer
constitute an Event of Default with respect to the applicable series of debt securities.
No Personal Liability of Directors, Officers, Employees or
Stockholders
None of our past, present or future directors,
officers, employees or stockholders, as such, will have any liability for any of our obligations under the debt securities or the indenture
or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder
waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that
such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New
York.
The indenture will provide that we, the trustee
and the holders of the debt securities (by their acceptance of the debt securities) 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 the indenture, the debt securities
or the transactions contemplated thereby.
The indenture will provide that any legal suit,
action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in
the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably
submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such
party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought
in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum. (Section 10.10)
Description
of Depositary Shares
We may issue depositary shares from time to
time. The following description summarizes the general terms and provisions of the depositary shares that we may offer pursuant to this
prospectus. The specific terms relating to any depositary shares that we offer will be described in a prospectus supplement, which you
should read. Because the terms of the specific depositary shares offered may differ from the general information that we have provided
below, you should rely on information in the applicable prospectus supplement that contradicts any information below. The summary below
is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the applicable deposit agreement,
which will be in the form filed as an exhibit to or incorporated by reference in the registration statement of which this prospectus is
a part at or prior to the time of the issuance of those depositary shares, as well as our amended and restated certificate of incorporation
or any certificate of designation relating to the applicable series of preferred stock.
General
We may, at our option, elect to offer fractional
interests in shares of a series of preferred stock as depositary shares, rather than full shares of preferred stock. In such event, we
will issue depositary receipts for those depositary shares, each of which will represent a fraction of a share of a particular class or
series of preferred stock, as described in the related prospectus supplement.
Shares of any series of preferred stock represented
by depositary shares will be deposited under a separate deposit agreement, between us and a bank or trust company selected by us having
its principal office in the United States and having a combined capital and surplus of at least $50 million, which entity we refer to
in this prospectus as a “preferred stock depositary.” The prospectus supplement relating to a series of depositary shares
will set forth the name and address of the preferred stock depositary with respect to those depositary shares. Subject to the terms of
the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fraction of a share of preferred
stock represented by the depositary share, to all of the rights, preferences and privileges of the preferred stock represented thereby
(including dividend, voting, conversion, exchange, redemption and liquidation rights, if any).
Depositary shares will be evidenced by depositary
receipts issued pursuant to the applicable deposit agreement. Depositary receipts will be distributed to those persons purchasing the
fractional interests in shares of preferred stock as described in the applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary will distribute
all cash dividends or other cash distributions received in respect of a series of preferred stock to the record holders of depositary
receipts relating to that preferred stock in proportion, insofar as possible, to the number of the depositary receipts owned by those
holders on the relevant record date (subject to certain obligations of holders to file proofs, certificates and other information and
to pay certain charges and expenses to the preferred stock depositary). The preferred stock depositary will distribute only such amount,
however, as can be distributed without attributing to any holder of depositary shares a fraction of one cent, and the balance not so distributed
will be held by the preferred stock depositary and added to and treated as part of the next sum received by such preferred stock depositary
for distribution to record holders of depositary shares then outstanding.
In the event of a distribution other than in
cash, the preferred stock depositary will distribute property received by it to the record holders of depositary shares entitled thereto,
in proportion to the number of such depositary shares owned by those holders, unless the preferred stock depositary determines that it
is not feasible to make such distribution, in which case the preferred stock depositary may, with our approval, adopt a method it deems
equitable and practicable to effect the distribution, including the public or private sale of such property and distribution of the net
proceeds therefrom to holders of depositary shares.
The amount so distributed to record holders
of depositary receipts in any of the foregoing cases will be reduced by any amount required to be withheld by us or the preferred stock
depositary on account of taxes.
The deposit agreement will also contain provisions
relating to the manner in which any subscription or similar rights offered by us to holders of the preferred stock will be made available
to holders of depositary shares.
Redemption of Depositary Shares
If a series of preferred stock represented by
depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the preferred stock depositary
resulting from redemption, in whole or in part, of such class or series of preferred stock held by the preferred stock depositary. The
redemption price per depositary share will be equal to the applicable fraction of the redemption price and other amounts per share, if
any, payable in respect of such class or series of preferred stock. Whenever we redeem preferred stock held by the preferred stock depositary,
the preferred stock depositary will redeem as of the same redemption date the number of depositary shares representing shares of preferred
stock so redeemed. If fewer than all of the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected
by lot or pro rata as may be determined to be equitable by the preferred stock depositary.
After the date fixed for redemption, the depositary
shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares with
respect to those depositary shares will cease, except the right to receive the redemption price upon that redemption. Any funds deposited
by us with the preferred stock depositary for any depositary shares which the holders thereof fail to redeem shall be returned to us after
a period of two years from the date those funds are so deposited.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which
the holders of a class or series of preferred stock are entitled to vote, the preferred stock depositary will mail the information contained
in the notice of meeting to record holders of the depositary receipts evidencing the depositary shares of such class or series of preferred
stock. Each record holder of the depositary receipts on the record date (which will be the same date as the record date for the related
class or series of preferred stock) will be entitled to instruct the preferred stock depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock represented by that holder’s depositary shares. The preferred stock depositary will
endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by those depositary shares in accordance
with the instructions, and we will agree to take all reasonable action which may be deemed necessary by the preferred stock depositary
in order to enable the preferred stock depositary to do so. The preferred stock depositary will abstain from voting the preferred stock
to the extent it does not receive specific instructions from the holder of depositary shares representing those shares of preferred stock.
The preferred stock depositary will not be responsible for any failure to carry out any instruction to vote, or for the manner or effect
of any such vote made, as long as any such action or non-action is taken in good faith and does not result from the negligence or willful
misconduct of the preferred stock depositary.
Liquidation Preference
In the event of our liquidation, dissolution
or winding up, whether voluntary or involuntary, holders of each depositary receipt will be entitled to the fraction of the liquidation
preference accorded each share of related preferred stock as set forth in the related prospectus supplement.
Conversion and Exchange of Preferred Stock
If any series of preferred stock underlying
the depositary shares is subject to provisions relating to its conversion or exchange, as set forth in the applicable prospectus supplement
relating thereto, each record holder of depositary receipts will have the right or obligation to convert or exchange the depositary shares
represented by those depositary receipts pursuant to the terms thereof.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the
depositary shares and any provision of the deposit agreement may be amended at any time by agreement between us and the preferred stock
depositary. However, amendments, if any, which materially and adversely alter the rights of holders of depositary receipts or that would
be materially and adversely inconsistent with the rights of holders of the underlying preferred stock, will be ineffective unless the
amendment has been approved by holders of at least a majority of the depositary shares then outstanding under the deposit agreement. Every
holder of outstanding depositary receipts at the time the amendment, if any, becomes effective will be deemed, by continuing to hold its
depositary receipts, to consent to the amendment and to be bound by the applicable deposit agreement as amended thereby.
We may terminate a deposit agreement upon not
less than 30 days’ prior written notice to the preferred stock depositary if a majority of each class or series of preferred stock
subject to the deposit agreement consents to its termination, whereupon the preferred stock depositary will deliver or make available
to each holder of depositary receipts, upon surrender of the depositary receipts held by such holder, the number of whole or fractional
shares of preferred stock as are represented by the depositary shares evidenced by those depositary receipts, together with any other
property held by the preferred stock depositary with respect to those depositary receipts. Additionally, a deposit agreement will automatically
terminate if:
| · | all outstanding depositary shares related thereto have been redeemed; |
| · | there has been a final distribution in respect of the preferred stock underlying those depositary shares in connection with our liquidation,
dissolution or winding up and the distribution has been distributed to the holders of the related depositary receipts; or |
| · | each share of related preferred stock has been converted into our capital stock not so represented by depositary shares. |
Charges of Depositary
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. We will pay the preferred stock depositary’s fees and charges
in connection with the initial deposit of the preferred stock and initial issuance of depositary receipts and any redemption or conversion
of the preferred stock. Holders of depositary receipts will pay all other transfer and other taxes, governmental charges and fees and
charges of the preferred stock depositary that are not expressly provided for in the deposit agreement.
Resignation and Removal of Depositary
A preferred stock depositary may resign at any time by delivering
to us notice of its election to do so, and we may at any time remove any preferred stock depositary. Any such resignation or removal will
take effect upon the appointment of a successor preferred stock depositary and that successor preferred stock depositary’s acceptance
of the appointment. The successor preferred stock depositary must be appointed within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus
of at least $50 million.
Miscellaneous
The preferred stock depositary will forward
all reports and communications which we deliver to the preferred stock depositary and which we are required or otherwise determine to
furnish to holders of the preferred stock.
Neither we nor any preferred stock depositary
will be liable if we are or it is prevented or delayed by law or any circumstance beyond our or its control in performing our or its obligations
under a deposit agreement. Our obligations and the obligations of any preferred stock depositary under a deposit agreement will be limited
to performing in good faith our and its respective duties thereunder (in the case of any action or inaction in the voting of a class or
series of preferred stock represented by the depositary shares), gross negligence or willful misconduct excepted. We and any preferred
stock depositary will not be obligated under the deposit agreement to prosecute or defend any legal proceeding in respect of any depositary
shares, depositary receipts or shares of any preferred stock represented thereby unless satisfactory indemnity is furnished. We and the
preferred stock depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting shares
of preferred stock for deposit, holders of depositary receipts or other persons believed to be competent to give such information and
on documents believed to be genuine and to have been signed and presented by the proper party or parties.
Description
of Warrants
We may elect to offer warrants from time to
time in one or more series. The following description summarizes the general terms and provisions of the warrants we may offer pursuant
to this prospectus that are common to all series. The specific terms relating to any series of our warrants that we offer will be described
in a prospectus supplement, which you should read. Because the terms of specific series of warrants offered may differ from the general
information that we have provided below, you should rely on information in the applicable prospectus supplement that contradicts any information
below. The summary below is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of
the applicable warrant agreement relating to each series of warrants, which will be in the form filed as an exhibit to or incorporated
by reference in the registration statement of which this prospectus is a part at or prior to the time of the issuance of such series of
warrants.
General
We may issue warrants to purchase common stock,
preferred stock, depositary shares, debt securities or any combination thereof, which we refer to in this prospectus, collectively, as
the “underlying warrant securities.” The warrants may be issued independently or together with any series of underlying warrant
securities and may be attached or separate from the underlying warrant securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with
the warrants of such series and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
The applicable prospectus supplement will describe
the terms of any series of warrants in respect of which this prospectus is being delivered, including the following:
| · | the title of the warrants; |
| · | the aggregate number of warrants; |
| · | the price or prices at which the warrants will be issued; |
| · | the currency or currencies in which the price of the warrants may be payable; |
| · | the designation and terms of the underlying warrant securities purchasable upon exercise of the warrants and the number of such underlying
warrant securities issuable upon exercise of the warrants; |
| · | the price at which and the currency or currencies, including composite currencies, in which the underlying warrant securities purchasable
upon exercise of the warrants may be purchased; |
| · | the date on which the right to exercise the warrants will commence and the date on which that right will expire (subject to any extension); |
| · | whether the warrants will be issued in registered form or bearer form; |
| · | if applicable, the minimum or maximum amount of the warrants which may be exercised at any one time; |
| · | if applicable, the designation and terms of the underlying warrant securities with which the warrants are issued and the number of
the warrants issued with each underlying warrant security; |
| · | if applicable, the date on and after which the warrants and the related underlying warrant securities will be separately transferable; |
| · | information with respect to book-entry procedures, if any; |
| · | if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the warrants; and |
| · | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Amendments and Supplements to Warrant Agreement
The warrant agreement for a series of warrants
may be amended or supplemented without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent
with the provisions of the warrants and that do not adversely affect the interests of the holders of the warrants.
Description
of Stock Purchase Contracts and Stock Purchase Units
We may elect to offer stock purchase contracts
and/or stock purchase units from time to time. The following description summarizes the general terms and provisions of the stock purchase
contracts and/or stock purchase units that we may offer pursuant to this prospectus. The specific terms relating to any stock purchase
contracts and/or stock purchase units that we offer will be described in a prospectus supplement, which you should read. Because the terms
of the specific stock purchase contracts and/or stock purchase units offered may differ from the general information that we have provided
below, you should rely on information in the applicable prospectus supplement that contradicts any information below. The summary below
is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the applicable stock purchase
contract or stock purchase unit agreement, which will be in the form filed as an exhibit to or incorporated by reference in the registration
statement of which this prospectus is a part at or prior to the time of the issuance of those stock purchase contracts or stock purchase
units, as well as, if applicable, any collateral arrangements or depositary arrangements relating to those stock purchase contracts or
stock purchase units.
We may issue stock purchase contracts, including
contracts obligating holders to purchase from us, and us to sell to holders, a specified number of shares of common stock, preferred stock
or depositary shares at a future date. The consideration per share of common stock, preferred stock or depositary shares may be fixed
at the time that the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock
purchase contracts. Any such formula may include anti-dilution provisions to adjust the number of shares issuable pursuant to such stock
purchase contract upon the occurrence of certain events. The stock purchase contracts may be issued separately or as a part of units,
which we refer to as stock purchase units, consisting of a stock purchase contract and our debt securities or debt obligations of third
parties, including United States Treasury securities, in each case securing holders’ obligations to purchase common stock, preferred
stock or depositary shares under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to
holders of the stock purchase units, or vice versa, and such payments may be unsecured or prefunded. The stock purchase contracts may
require holders to secure their obligations thereunder in a specified manner.
Description
of Subscription Rights
We may elect to offer subscription rights from
time to time. The following description summarizes the general terms and provisions of the subscription rights that we may offer pursuant
to this prospectus. The specific terms relating to any subscription rights that we offer will be described in a prospectus supplement,
which you should read. Because the terms of the specific subscription rights offered may differ from the general information that we have
provided below, you should rely on information in the applicable prospectus supplement that contradicts any information below. The summary
below is not complete and is subject to, and qualified in its entirety by reference to, the provisions of the applicable prospectus supplement.
General
We may issue subscription rights to purchase
common stock, preferred stock, depositary shares or warrants to purchase preferred stock, common stock or depositary shares. Subscription
rights may be issued independently or together with any other offered security and may or may not be transferable by the person purchasing
or receiving the subscription rights. In connection with any subscription rights offering to our stockholders, we may enter into a standby
underwriting arrangement with one or more underwriters pursuant to which such underwriters will purchase any offered securities remaining
unsubscribed for after such subscription rights offering. In connection with a subscription rights offering to our stockholders, we will
distribute certificates evidencing the subscription rights and a prospectus supplement to our stockholders on the record date that we
set for receiving subscription rights in such subscription rights offering.
The applicable prospectus supplement will describe
the terms of any subscription rights in respect of which this prospectus is being delivered, including the following:
| · | the title of the subscription rights; |
| · | the securities for which the subscription rights will be exercisable; |
| · | the exercise price for the subscription rights; |
| · | the number of the subscription rights issuable to each stockholder; |
| · | the extent to which the subscription rights will be transferable; |
| · | the date on which the right to exercise the subscription rights will commence and the date on which the rights will expire (subject
to any extension); |
| · | the extent to which the subscription rights will include an over-subscription privilege with respect to unsubscribed securities; |
| · | if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection with
the subscription rights offering; |
| · | if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the subscription rights; and |
| · | any other terms of the subscription rights, including terms, procedures and limitations relating to the exchange and exercise of the
subscription rights. |
Exercise of Subscription Rights
Each subscription right will entitle the holder
of the subscription right to purchase for cash such amount of shares of common stock, preferred stock, depositary shares, warrants or
any combination thereof, at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the subscription rights offered thereby. Subscription rights may be exercised at any time up to the close of business
on the expiration date for such subscription rights set forth in the prospectus supplement. After the close of business on the expiration
date, all unexercised subscription rights will become void.
Subscription rights may be exercised as set
forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the subscription rights
certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any other office indicated
in the prospectus supplement, we will forward, as soon as practicable, the shares of common stock or preferred stock, depositary shares
or warrants purchasable upon such exercise. We may determine to offer any unsubscribed offered securities directly to persons other than
stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting
arrangements, as set forth in the applicable prospectus supplement.
Plan
of Distribution
We, or one or more selling security holders
to be identified in a prospectus supplement, may sell the securities of or within any series to or through agents, underwriters, dealers,
remarketing firms or other third parties or directly to one or more purchasers or through a combination of any of these methods. We may
issue securities as a dividend or distribution. In some cases, we or dealers acting with us or on our behalf may also purchase securities
and reoffer them to the public. We or one or more selling security holders may also offer and sell, or agree to deliver, securities pursuant
to, or in connection with, any option agreement or other contractual arrangement.
Each time we offer and sell securities covered
by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth
the terms of the offering, including:
| · | the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them; |
| · | the public offering price of the securities and the proceeds to us or the selling security holders, as the case may be; |
| · | any over-allotment options under which underwriters may purchase additional securities from us; |
| · | any underwriting discounts or commissions or agency fees and other items constituting underwriters’ or agents’ compensation; |
| · | terms and conditions of the offering; |
| · | any discounts, commissions or concessions allowed or reallowed or paid to dealers; and |
| · | any securities exchange or market on which the securities may be listed. |
Agents
We or one or more selling security holders may
use agents to sell securities. We or one or more selling security holders will name any agent involved in offering or selling securities,
and disclose any commissions that we or one or more selling security holders will pay to the agent, in the applicable prospectus supplement.
Unless we tell you otherwise in the applicable prospectus supplement, the agents will agree to use their reasonable efforts to solicit
purchases for the period of their appointment or to sell our securities on a continuing basis. Our agents may be deemed to be underwriters
under the Securities Act of any of the securities that they offer or sell.
Underwriters
We or one or more selling security holders may
sell securities to underwriters. If we or one or more selling security holders use underwriters, the underwriters will acquire the securities
for their own account, including without limitation through underwriting, purchase, security lending, repurchase or other agreements with
us or one or more selling security holders, as the case may be. Unless we or one or more selling security holders tell you otherwise in
the applicable prospectus supplement, the underwriters may resell those securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of sale. Unless the applicable prospectus supplement states
otherwise, the obligations of the underwriters to purchase any series of securities will be subject to conditions precedent, and the underwriters
will be obligated to purchase all of the securities if any are purchased. The underwriters may change any initial public offering price
and any discounts or concessions they give to dealers.
Dealers
We or one or more selling security holders may
use a dealer to sell the securities. If we or one or more selling security holders use a dealer, we or one or more selling security holders,
as the case may be, as principal, will sell the securities to the dealer who will then sell the securities to the public at varying prices
that the dealer will determine at the time it sells our securities.
Direct Sales
We or one or more selling security holders may
solicit directly offers to purchase the securities, and we or one or more selling security holders may sell securities directly to purchasers
without the involvement of agents, underwriters or dealers. We will describe the terms of our direct sale in the applicable prospectus
supplement.
Other Means of Distribution
Securities may also be offered and sold, if
we so indicate in the applicable prospectus supplement, by one or more firms (“remarketing firms”) acting as principals for
their own accounts or as our agents in connection with a remarketing of such securities following their purchase or redemption or otherwise.
Remarketing firms may be deemed to be underwriters under the Securities Act in connection with the securities they remarket.
We may engage in at the market offerings into
an existing trading market in accordance with Rule 415(a)(4).
We may authorize our agents, dealers and underwriters
to solicit offers by certain institutions to purchase the securities at the public offering price under delayed delivery contracts. If
we use delayed delivery contracts, we will disclose that we are using them in the applicable prospectus supplement and will tell you when
we will demand payment and delivery of the securities under the delayed delivery contracts. These delayed delivery contracts will be subject
only to the conditions that we describe in the prospectus supplement.
With or without the involvement of agents, underwriters,
dealers, remarketing firms or other third parties, we may utilize the Internet or other electronic bidding or ordering systems for the
pricing and allocation of securities. Such a system may allow bidders to directly participate, through electronic access to an auction
site, by submitting conditional offers to buy that are subject to acceptance by us. The use of such a system may affect the price or other
terms at which such securities are sold. The final offering price at which securities would be sold, and the allocation of securities
among bidders, would be based in whole or in part on the results of the bidding process or auction. Many variations of the Internet auction
or pricing and allocating systems are likely to be developed in the future, and we may utilize such systems in connection with the sale
of securities. We will describe in the applicable prospectus supplement how any auction or bidding process will be conducted to determine
the price or any other terms of the securities, how potential investors may participate in the process and, where applicable, the nature
of the obligations of any agent, underwriter, dealer or remarketing firm with respect to the auction or ordering system.
Derivative Transactions and Hedging
We may enter into derivative or other hedging
transactions involving the securities with third parties, or sell securities not covered by the prospectus to third parties in privately-negotiated
transactions. If we so indicate in the applicable prospectus supplement, in connection with those derivative transactions, the third parties
may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions, or may
lend securities in order to facilitate short sale transactions by others. If so, the third party may use securities pledged by us or borrowed
from us or others to settle those sales or to close out any related open borrowings of securities, and may use securities received from
us in settlement of those derivative or hedging transactions to close out any related open borrowings of securities. The third party in
such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment
to the registration statement of which this prospectus is a part).
We may effect sales of securities in connection
with forward sale, option or other types of agreements with third parties. Any distribution of securities pursuant to any forward sale
agreement may be effected from time to time in one or more transactions that may take place through a stock exchange, including block
trades or ordinary broker’s transactions, or through broker-dealers acting either as principal or agent, or through privately-negotiated
transactions, or through an underwritten public offering, or through a combination of any such methods of sale, at market prices prevailing
at the time of sale, at prices relating to such prevailing market prices or at negotiated or fixed prices.
We may loan or pledge securities to third parties
that in turn may sell the securities using this prospectus and the applicable prospectus supplement or, if we default in the case of a
pledge, may offer and sell the securities from time to time using this prospectus and the applicable prospectus supplement. Such third
parties may transfer their short positions to investors in our securities or in connection with a concurrent offering of other securities
offered by this prospectus and the applicable prospectus supplement or otherwise.
General Information
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment
involves sales in excess of the offering size, which create a short position. This short sales position may involve either “covered”
short sales or “naked” short sales. Covered short sales are short sales made in an amount not greater than the underwriters’
over- allotment option to purchase additional securities in an offering. The underwriters may close out any covered short position either
by exercising their over-allotment option or by purchasing securities in the open market. To determine how they will close the covered
short position, the underwriters will consider, among other things, the price of securities available for purchase in the open market,
as compared to the price at which they may purchase securities through the over-allotment option. Naked short sales are short sales in
excess of the over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market.
A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may
be downward pressure on the price of the securities that could adversely affect investors who purchase securities in an offering. Stabilizing
transactions permit bids to purchase the underlying security for the purpose of fixing the price of the security so long as the stabilizing
bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover short positions.
Similar to other purchase transactions, an underwriter’s
purchase to cover syndicate short sales or to stabilize the market price of the securities may have the effect of raising or maintaining
the market price of the securities or preventing or mitigating a decline in the market price of the securities. As a result, the price
of the securities may be higher than the price that might otherwise exist in the open market. The imposition of a penalty bid might also
have an effect on the price of the securities if it discourages resales of the securities.
Unless the applicable prospectus supplement
states otherwise, each series of securities will be a new issue of securities and will have no established trading market, other than
our common stock which is traded on the Nasdaq Global Select Market as of the date of this prospectus. We may elect to list any other
series of securities on any exchange or market, but we are not obligated to do so. Any underwriters to whom the securities are sold for
a public offering may make a market in those securities. However, those underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of, or the trading market for, any of the
securities.
Any underwriters, dealers, agents, remarketing
firms and third parties may be customers of, engage in transactions with, or perform services for, JetBlue in the ordinary course of their
business. We will describe the nature of any such relationship in any prospectus supplement naming any such underwriter, dealer, agent,
remarketing firm or third party.
Legal
Matters
Unless otherwise indicated in an applicable
prospectus supplement, the validity of the securities to be offered by this prospectus will be passed upon for JetBlue by Shearman &
Sterling LLP, 599 Lexington Avenue, New York, New York 10022 and for any agents, underwriters, dealers, remarketing firms or other third
parties by counsel named in the applicable prospectus supplement.
Experts
The consolidated financial statements of JetBlue
Airways Corporation appearing in JetBlue Airways Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2021 (including
the schedule appearing therein), and the effectiveness of JetBlue Airways Corporation’s internal control over financial reporting
as of December 31, 2021, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and JetBlue Airways Corporation
management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2021 are incorporated
herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
PROSPECTUS
Pass Through Certificates
Pass through
trusts that we form may offer for sale pass through certificates from time to time under this prospectus and one or more prospectus supplements.
Each pass through certificate will represent an interest in a pass through trust. The property of the pass through trust will include
equipment notes issued by:
| · | one or more owner trustees, on a non-recourse basis, to finance or refinance a portion of the purchase price of aircraft that have
been or will be leased to us as part of a leveraged lease transaction; or |
| · | JetBlue to finance or refinance all or a portion of the purchase price of aircraft owned or to be purchased by us. |
The pass through certificates will not represent
interests in or obligations of JetBlue or any of our affiliates.
Equipment notes issued by any owner trustee
will be without recourse to us. For each aircraft, we or an owner trustee will issue one or more equipment notes with an interest rate,
final maturity date and ranking of priority of payment described in a prospectus supplement.
The pass through trustee will distribute to
the holders of pass through certificates the interest paid on the equipment notes held in the related pass through trust on the dates
and at the rates indicated in a prospectus supplement. Holders of pass through certificates will also receive distributions of the principal
paid on the equipment notes in scheduled amounts and on dates specified in a prospectus supplement. Unless otherwise indicated in a prospectus
supplement, we will not list the pass through certificates on any national securities exchange.
You should read this prospectus and any applicable
prospectus supplement carefully before you purchase our pass through certificates. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES
OF PASS THROUGH CERTIFICATES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may offer and sell the pass through certificates
directly to you, through agents we select, or through underwriters or dealers we select. If we use agents, underwriters or dealers to
sell the securities, we will name them and describe their compensation in a prospectus supplement. The net proceeds we expect to receive
from such sales will be set forth in the prospectus supplement.
Investing in our pass through trust certificates
involves risks. See the “Risk Factors” section of this prospectus. You should carefully consider these risk factors and risks
before investing in any of our securities.
Neither the Securities and Exchange Commission nor
any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is February 28, 2022.
TABLE OF CONTENTS
Page
About
This Prospectus
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under the shelf
registration statement process, using this prospectus, together with a prospectus supplement, we may sell from time to time pass through
certificates in one or more offerings. This prospectus provides you with a general description of pass through certificates that we may
offer.
Each time that we offer pass through certificates
under this prospectus, we will provide a prospectus supplement that will contain specific information about the pass through certificates
being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these offerings. The prospectus supplement may also add to, update or change
information contained in this prospectus with respect to that offering. Accordingly, to the extent inconsistent the information in this
prospectus will be deemed to be modified or superseded by any inconsistent information contained in a prospectus supplement. You should
read carefully this prospectus, the applicable prospectus supplement, and the additional information incorporated by reference in this
prospectus described under the heading “Where You Can Find More Information; Incorporation by Reference” before making an
investment in the pass through certificates.
We have not authorized anyone to provide you
with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement
or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can
provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus
and the applicable prospectus supplement to this prospectus is accurate as of the date on its respective cover, and that any information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by
reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry
statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe
these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified
this information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus and
the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various
factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus
supplement and any related free writing prospectus, and under similar headings in other documents that are incorporated by reference into
this prospectus. Accordingly, investors should not place undue reliance on this information.
When we refer to “JetBlue,” “we,”
“our,” “us” and the “Company” in this prospectus, we mean JetBlue Airways Corporation and our consolidated
subsidiaries, unless otherwise specified. When we refer to “you,” we mean the holders of the applicable series of securities.
Where
You Can Find More Information; Incorporation by Reference
We file annual, quarterly and current reports,
proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Our SEC
filings are available from the SEC’s Internet site at http://www.sec.gov, which contains reports, proxy and information statements,
and other information regarding issuers, like us, who file reports electronically with the SEC.
The SEC allows us to “incorporate by reference”
into this prospectus the information we file with them, which means that we can disclose important information to you by referring you
to those documents. Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein, or in any subsequently filed document which also is incorporated
by reference herein, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the documents listed below (excluding
any portions of such documents that have been “furnished” but not “filed” for purposes of the Exchange Act):
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 22, 2022; |
| · | the information specifically incorporated by reference into our Annual Report on Form 10-K from our definitive proxy statement on
Schedule 14A, filed on March 29, 2021; and |
| · | the description of our common stock contained
in Exhibit 4.18 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 22, 2022, and any amendment or report filed with the SEC for the purpose of updating the description. |
All documents we file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before all of the securities offered by this prospectus
are sold are incorporated by reference in this prospectus from the date of filing of the documents, except for information furnished under
Item 2.02 and Item 7.01 of Form 8-K, which is not deemed filed and not incorporated by reference herein. Information that we file with
the SEC will automatically update and may replace information in this prospectus and information previously filed with the SEC.
You may obtain any of these incorporated documents
from us without charge, excluding any exhibits to these documents unless the exhibit is specifically incorporated by reference in such
document, by requesting them from us in writing or by telephone at the following address:
JetBlue Airways Corporation
27-01 Queens Plaza North
Long Island City, New York 11101
Attention: Legal Department
(718) 286-7900
Documents may also be available on our website at http://investor.jetblue.com.
Information contained on our website does not constitute part of this prospectus.
This prospectus and any prospectus supplement
are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement.
The full registration statement may be obtained from the SEC or us, as provided above. Forms of the documents establishing the terms of
the offered securities are or may be filed as exhibits to the registration statement. Statements in this prospectus or any prospectus
supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it
refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the
registration statement through the SEC’s website, as provided above.
Jetblue
Airways Corporation
JetBlue Airways Corporation, or JetBlue, is
New York’s Hometown Airline®. As of December 31, 2021, JetBlue served
over 100 destinations across the United States, the Caribbean and Latin America, and between New York and London.
JetBlue was incorporated in Delaware in August 1998
and commenced service on February 11, 2000. We believe our differentiated product and culture combined with our competitive cost
structure enables us to compete effectively in the high-value geographies we serve. Looking to the future, we plan to continue to grow
in our high-value geographies, invest in industry leading products and provide award-winning service by our 22,000+
dedicated employees, whom we refer to as crewmembers. Going forward, we believe we will continue to differentiate ourselves from
other airlines, enabling us to continue to attract a greater mix of customers, and to drive further profitable growth. We are focused
on delivering solid results for our stockholders, our customers, and our crewmembers.
Our principal executive offices are located
at 27-01 Queens Plaza North, Long Island City, New York 11101 and our telephone number is (718) 286-7900.
Risk
Factors
Investing in our pass through trust certificates
involves risks. See the “Risk Factors” section of our Annual Report on Form 10-K for the year ended December 31, 2021 as updated
by our Current Reports on Form 8-K, and any other reports that we may file from time to time with the Securities and Exchange Commission,
and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the
Exchange Act. The prospectus supplement relating to a particular offering of pass through trust certificates may discuss certain risks
of investing in those securities. You should carefully consider these risk factors and risks before investing in any of our securities.
See “Where You Can Find More Information.”
Use
of Proceeds; Description of Pass Through Certificates
Except as set forth in any applicable prospectus
supplement, the pass through trustee(s) will use proceeds from the sale of pass through certificates to purchase equipment notes secured
by aircraft. The equipment notes are or will be issued by:
| · | one or more owner trustees on a non-recourse basis to finance or refinance a portion of the purchase price of aircraft that have been
or will be leased to us (“leased aircraft notes”), or |
| · | us to finance or refinance all or a portion of the purchase price of aircraft owned or to be purchased by us (“owned aircraft
notes”). |
Any trust may hold owned aircraft notes and
leased aircraft notes simultaneously. The owned aircraft notes will be secured by certain aircraft owned or to be owned by us, and the
leased aircraft notes will be secured by certain aircraft leased or to be leased to us.
In addition, to the extent set forth in an applicable
prospectus supplement, each trust may hold (exclusively, or in combination with owned aircraft notes, leased aircraft notes or both) equipment
notes secured by aircraft engines, spare parts, appliances or other equipment or personal property owned or to be owned by, or leased
or to be leased to, us. Such equipment notes, and the property securing them, will be subject to the considerations, terms, conditions,
and other provisions described in the applicable prospectus supplement.
The pass through certificates will not represent
interests in JetBlue or any of our affiliates and will not represent obligations of any of our affiliates.
For each leased aircraft, the owner trustee
will issue the related equipment notes, as nonrecourse obligations, authenticated by a bank or trust company, as indenture trustee under
either a separate supplement to an existing trust indenture and security agreement between the owner trustee and the indenture trustee
or a separate trust indenture and security agreement. The owner trustee will also obtain a portion of the funding for the leased aircraft
from an equity investment of one or more owner participants. A leased aircraft may also be subject to other financing arrangements that
will be described in the applicable prospectus supplement. In connection with the refinancing of a leased aircraft, the owner trustee
may refinance the existing equipment notes through the issuance of notes by a separate trust, which will be described in the applicable
prospectus supplement.
We will issue the equipment notes relating to
aircraft owned by us under either a separate supplement to an existing trust indenture and mortgage or a separate trust indenture and
mortgage.
A trust may hold owned aircraft notes or leased
aircraft notes that are subordinated in right of payment to other equipment notes or other debt related to the same owned or leased aircraft.
In addition, the trustees on behalf of one or more trusts may enter into an intercreditor or subordination agreement establishing priorities
among series of pass through certificates. Also, a liquidity facility, surety bond, financial guarantee, interest rate or other swap or
other arrangement may support one or more payments on the equipment notes or pass through certificates of one or more series. In addition,
the trustee may enter into servicing, remarketing, appraisal, put or other agreements relating to the collateral securing the equipment
notes. We will describe any such credit enhancements or other arrangements or agreements in the applicable prospectus supplement.
If the pass through trustee does not use the
proceeds of any offering of pass through certificates to purchase equipment notes on the date of issuance of the pass through certificates,
it will hold the proceeds for the benefit of the holders of the related pass through certificates under arrangements that we will describe
in the applicable prospectus supplement. If the pass through trustee does not subsequently use any portion of the proceeds to purchase
equipment notes by the date specified in the applicable prospectus supplement, it will return that portion of the proceeds to the holders
of the related pass through certificates. In these circumstances, the prospectus supplement will describe how the proceeds of the pass
through certificates will be held or applied including any depositary or escrow arrangements.
Credit
Enhancements
Ranking; Cross-Subordination
Some of the equipment notes related to a specific
aircraft may be subordinated and junior in right of payment to other equipment notes or other debt related to the same or certain related
aircraft. In such event, the applicable prospectus supplement will describe the terms of such subordination, including the priority of
distributions among such classes of equipment notes, the ability of each such class of equipment notes to exercise remedies with respect
to the relevant aircraft (and, if such aircraft are leased aircraft, the leases) and certain other intercreditor terms and provisions.
The equipment notes issued under an indenture
may be held in more than one trust, and a trust may hold equipment notes issued under more than one related indenture. Unless otherwise
described in a prospectus supplement, however, only equipment notes having the same priority of payment may be held in the same trust.
A trust that holds equipment notes that are junior in payment priority to the equipment notes held in another related trust formed as
part of the same offering of pass through certificates as a practical matter will be subordinated to such latter trust. In addition, the
trustees on behalf of one or more trusts may enter into an intercreditor or subordination agreement that establishes priorities among
series of pass through certificates or provides that distributions on the pass through certificates will be made to the certificateholders
of a certain trust or trusts before they are made to the certificateholders of one or more other trusts. For example, such an agreement
may provide that payments made to a trust on account of a subordinate class of equipment notes issued under one indenture may be fully
or partially subordinated to the prior payment of all amounts owing to certificateholders of a trust that holds senior equipment notes
issued under that indenture or any related indentures.
The applicable prospectus supplement will describe
any such intercreditor or subordination agreement or arrangements and the relevant cross-subordination provisions. Such description will
specify the percentage of certificateholders under any trust that is permitted to (1) grant waivers of defaults under any related indenture,
(2) consent to the amendment or modification of any related indenture or (3) direct the exercise of remedies under any related indenture.
Payments made on account of the pass through certificates of a particular series also may be subordinated to the rights of the provider
of any credit support agreement described below.
Credit Support Agreements
The applicable prospectus supplement may provide
that a “credit support agreement” will support, insure or guarantee one or more payments of principal, premium, if any, or
interest on the equipment notes of one or more series, or one or more distributions in respect of the pass through certificates of one
or more series. A credit support agreement may include a letter of credit, a bank guarantee, a revolving credit agreement, an insurance
policy, surety bond or financial guarantee, a liquidity facility or any other type of agreement or arrangement for the provision of insurance,
a guarantee or other credit enhancement or liquidity support. In addition, if any equipment notes bear interest at a floating rate, there
may be a cap or swap agreement or other arrangement in case the interest rate becomes higher than is covered by the credit support agreement.
The institution or institutions providing any credit support agreement will be identified in the applicable prospectus supplement. Unless
otherwise provided in the applicable prospectus supplement, the provider of any credit support agreement will have a senior claim on the
assets securing the affected equipment notes and on the trust property of the affected trusts.
Plan
of Distribution
We may sell the offered pass through certificates from time to time:
| · | through underwriters or dealers; |
| · | directly to one or more purchasers; or |
| · | through a combination of any of these methods of sale. |
We will identify the specific plan of distribution,
including any underwriters, dealers, agents or direct purchasers and their compensation, in the applicable prospectus supplement.
Legal
Matters
Unless otherwise indicated in an applicable
prospectus supplement, the validity of the securities to be offered by this prospectus will be passed upon for JetBlue by Shearman &
Sterling LLP, 599 Lexington Avenue, New York, New York 10022 and for any agents, underwriters, dealers, remarketing firms or other third
parties by counsel named in the applicable prospectus supplement.
Experts
The consolidated financial statements of JetBlue
Airways Corporation appearing in JetBlue Airways Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2021 (including
the schedule appearing therein), and the effectiveness of JetBlue Airways Corporation’s internal control over financial reporting
as of December 31, 2021, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and JetBlue Airways Corporation
management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2021 are incorporated
herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table following table sets forth
the aggregate estimated expenses, other than underwriting discounts and commissions, currently anticipated to be payable by the registrant
in connection with the sale of the securities being registered hereby. All of the amounts shown are estimated except the Securities and
Exchange Commission registration fee.
| SEC registration fee |
* |
| Printing and engraving expenses |
** |
| Trustee and transfer agent fees and expenses |
** |
| Legal fees and expenses |
** |
| Accounting fees and expenses |
** |
| Miscellaneous fees and expenses |
** |
| Total |
** |
* Deferred in accordance with Rules 456(b) and 457(r) under the
Securities Act.
** The estimated amounts of fees and expenses to be incurred in
connection with any offering of securities pursuant to this registration statement will be determined from time to time and reflected
in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law authorizes a court to award or a corporation’s board of directors to grant indemnification to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing provisions, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Article VIII, Section 6, of the registrant’s
bylaws provides for mandatory indemnification of its directors and officers and permissible indemnification of employees and other agents
to the maximum extent permitted by the Delaware General Corporation Law. The registrant’s amended and restated certificate of incorporation
provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of the directors’ fiduciary
duty as directors to the Company or its stockholders. This provision in the amended and restated certificate of incorporation does not
eliminate the directors’ fiduciary duty, and in appropriate circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for
breach of the director’s duty of loyalty to the Company for acts or omissions not in good faith or involving intentional misconduct,
for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval
of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities
under any other law, such as the federal securities laws or state or federal environmental laws. The registrant’s bylaws provide
that our directors and officers shall be indemnified and provide for the advancement to them of expenses in connection with actual or
threatened proceedings and claims arising out of their status as such to the fullest extent permitted by the Delaware General Corporation
Law. The registrant has entered into indemnification agreements with each of its directors and executive officers that provide them with
rights to indemnification and expense advancement to the fullest extent permitted under the Delaware General Corporation Law.
The registrant maintains directors and officers
liability insurance.
Item 16. Exhibits and Financial Statement Schedules.
A list of exhibits filed herewith is contained
on the Exhibit Index and is incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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 SEC pursuant to Rule 424(b) under the Securities Act 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 clauses (1)(i), (1)(ii) and (1)(iii) do not apply if the registration statement
is on Form S-3 and the information required to be included in a post-effective amendment by those clauses is contained in reports filed
with or furnished to the SEC by such registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) 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 to any purchaser:
(i) Each prospectus filed by such registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part
of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a
new effective date of the registration statement relating to the securities in the registration statement to which the 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;
(5) That, for the purpose of determining liability of the registrants
under the Securities Act to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in
a primary offering of securities of such 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, such 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 such 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 such undersigned registrant or used or referred to by such undersigned registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about such 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 such undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of such registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan’s annual report pursuant to
section 15 (d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) For an offering in which the securities to be registered are
to be offered to existing security holders pursuant to warrants or rights and any securities not taken by security holders are to be reoffered
to the public, each undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period,
to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering
by the underwriters is to be made on terms differing from those set forth on the cover page of the applicable prospectus supplement, a
post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons of a registrant pursuant to the foregoing provisions, or
otherwise, each 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. In the event that a claim for indemnification against such liabilities (other
than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of such 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 applicable registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
(e) Each undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act, as
amended, in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act, as amended.
EXHIBIT INDEX
|
Exhibit Number
|
Exhibit Description
|
| 1.1 |
Form of Underwriting Agreement for Common Stock or Preferred Stock (1) |
| 1.2 |
Form of Underwriting Agreement for Debt Securities (1) |
| 1.3 |
Form of Underwriting Agreement for Depositary Shares (1) |
| 1.4 |
Form of Underwriting Agreement Relating to Pass Through Certificates (1) |
| 4.1 |
Form of Indenture, between JetBlue Airways Corporation and Wilmington Trust, National Association, as Trustee, relating to the Company’s debt securities--incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-3 (File No. 333-230007) |
| 4.2 |
Form of Debt Security (included in Exhibit 4.1) |
| 4.3 |
Form of Deposit Agreement (including terms of Depositary Receipts to be issued thereunder) (1) |
| 4.4 |
Form of Warrant Agreement (including form of Warrant) (1) |
| 4.5 |
Form of Stock Purchase Contract (including Form of Stock Purchase Contract Certificate) (1) |
| 4.6 |
Form of Stock Purchase Unit Agreement (including Form of Stock Purchase Unit Certificate) (1) |
| 4.7 |
Form of Pass Through Trust Agreement--incorporated by reference to Exhibit 4.7 to the Registration Statement on Form S-3 (File No. 333-230007) |
| 4.7(a) |
Form of Pass Through Trust Certificate (included in Exhibit 4.7) |
| 4.8 |
Form of Subscription Rights Agreement (including
form of Subscription Rights Certificate) (1) |
| 4.9 |
Form of Preferred Stock Certificate (1) |
| 4.10 |
Form of Common Stock Certificate—incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1, as amended (File No. 333-82576). |
| 4.11 |
Pass Through Trust Agreement, dated as of November 12, 2019, between JetBlue Airways Corporation and Wilmington Trust Company—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(a) |
Trust Supplement No. 2019-1AA, dated as of November 12, 2019, between JetBlue Airways Corporation and Wilmington Trust Company, as Class AA Trustee, to the Pass Through Trust Agreement dated as of November 12, 2019—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(b) |
Trust Supplement No. 2019-1A, dated as of November 12, 2019, between JetBlue Airways Corporation and Wilmington Trust Company, as Class A Trustee, to the Pass Through Trust Agreement dated as of November 12, 2019—incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(c) |
Form of Pass Through Trust Certificate, Series 2019-1AA (included in Exhibit A to Exhibit 4.11(a))—incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(d) |
Form of Pass Through Trust Certificate, Series 2019-1A (included in Exhibit A to Exhibit 4.11(b))—incorporated by reference to Exhibit 4.5 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(e) |
Intercreditor Agreement (2019-1), dated as of November 12, 2019, among JetBlue Airways Corporation, Wilmington Trust Company, as Trustee of the JetBlue Airways Pass Through Trust 2019-1AA and the JetBlue Airways Pass Through Trust 2019-1A, Crédit Agricole Corporate and Investment Bank, acting through its New York Branch, as Class AA Liquidity Provider and Wilmington Trust Company—incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(f) |
Revolving Credit Agreement (2019-1AA), dated as of November 12, 2019, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the trustee of JetBlue Airways Pass Through Trust 2019-1AA and as Borrower, and Crédit Agricole Corporate and Investment Bank, acting through its New York Branch, as Class AA Liquidity Provider—incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(g) |
Revolving Credit Agreement (2019-1A), dated as of November 12, 2019, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the trustee of JetBlue Airways Pass Through Trust 2019-1A and as Borrower, and Crédit Agricole Corporate and Investment Bank, acting through its New York Branch, as Class A Liquidity Provider—incorporated by reference to Exhibit 4.8 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(h) |
Participation Agreement (N976JT), dated as of November 12, 2019, among JetBlue Airways Corporation, Wilmington Trust Company, as Pass Through Trustee under the Pass Through Trust Agreements, Wilmington Trust Company, as Subordination Agent, Wilmington Trust Company, as Loan Trustee, and Wilmington Trust Company, in its individual capacity as set forth therein—incorporated by reference to Exhibit 4.9 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(i) |
Indenture and Security Agreement (N976JT), dated as of November 12, 2019, between JetBlue Airways Corporation and Wilmington Trust Company, as Loan Trustee†—incorporated by reference to Exhibit 4.10 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(j) |
Form of Series 2019-1 Equipment Notes (included in Exhibit 4.11(i))—incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated November 12, 2019. |
| 4.11(k)† |
Schedule I |
| 4.11(l) |
Trust Supplement No. 2020-1A, dated as of August 17, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Class A Trustee, to the Pass Through Trust Agreement dated as of November 12, 2019—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(m) |
Trust Supplement No. 2020-1B, dated as of August 17, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Class B Trustee, to the Pass Through Trust Agreement dated as of November 12, 2019—incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(n) |
Form of Pass Through Trust Certificate, Series 2020-1A (included in Exhibit A to Exhibit 4.11(l))—incorporated by reference to Exhibit A to Exhibit 4.2 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(o) |
Form of Pass Through Trust Certificate, Series 2020-1B (included in Exhibit A to Exhibit 4.11(m))—incorporated by reference to Exhibit A to Exhibit 4.3 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(p)* |
Intercreditor Agreement (2020-1), dated as of August 17, 2020, among JetBlue Airways Corporation, Wilmington Trust Company, as Trustee of the JetBlue Airways Pass Through Trust 2020-1A and the JetBlue Airways Pass Through Trust 2020-1B, Natixis S.A., acting through its New York Branch, as Class A Liquidity Provider and Class B Liquidity Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(q)* |
Revolving Credit Agreement (2020-1A), dated as of August 17, 2020, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the trustee of JetBlue Airways Pass Through Trust 2020-1A and as Borrower, and Natixis S.A., acting through its New York Branch, as Class A Liquidity Provider-incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(r)* |
Revolving Credit Agreement (2020-1B), dated as of August 17, 2020, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the trustee of JetBlue Airways Pass Through Trust 2020-1B and as Borrower, and Natixis S.A., acting through its New York Branch, as Class B Liquidity Provider-incorporated by reference to Exhibit 4.8 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(s)*, †† |
Participation Agreement (N946JL), dated as of August 17, 2020, among JetBlue Airways Corporation, Wilmington Trust Company, as Pass Through Trustee under the Pass Through Trust Agreements, Wilmington Trust Company, as Subordination Agent, Wilmington Trust Company, as Loan Trustee, and Wilmington Trust Company, in its individual capacity as set forth therein-incorporated by reference to Exhibit 4.9 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
|
| 4.11(t)*, †† |
Indenture and Security Agreement (N946JL), dated as of August 17, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Loan Trustee-incorporated by reference to Exhibit 4.10 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(u)*, ††† |
Participation Agreement (N2002J), dated as of August 17, 2020, among JetBlue Airways Corporation, Wilmington Trust Company, as Pass Through Trustee under the Pass Through Trust Agreements, Wilmington Trust Company, as Subordination Agent, Wilmington Trust Company, as Loan Trustee, and Wilmington Trust Company, in its individual capacity as set forth therein-incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(v)*, ††† |
Indenture and Security Agreement (N2002J), dated as of August 17, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Loan Trustee-incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(w) |
Form of Series 2020-1 Equipment Notes (included in Exhibits 4.11(t) and 4.11(v))-incorporated by reference to Exhibits 4.10 and 4.12 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(x) †† |
Schedule I (setting forth the details by which the documents referred to therein differ from the corresponding representative sample of documents included as Exhibits 4.11(s) and 4.11(t) with respect to Aircraft bearing Registration No. N946JL)-incorporated by reference to Exhibit 99.1 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(y) ††† |
Schedule II (setting forth the details by which the documents referred to therein differ from the corresponding representative sample of documents included as Exhibits 4.11(u) and 4.11(v) with respect to Aircraft bearing Registration No. N2002J)-incorporated by reference to Exhibit 99.2 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020. |
| 4.11(z) |
Trust Supplement No. 2019-1B, dated as of August 27, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Class B Trustee, to the Pass Through Trust Agreement dated as of November 12, 2019-incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(aa) |
Form of Pass Through Trust Certificate, Series 2019-1B (included in Exhibit A to Exhibit 4.11(z))-incorporated by reference to Exhibit A to Exhibit 4.2 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(ab)* |
Amended and Restated Intercreditor Agreement (2019-1), dated as of August 27, 2020, among JetBlue Airways Corporation, Wilmington Trust Company, as Trustee of the JetBlue Airways Pass Through Trust 2019-1AA, the JetBlue Airways Pass Through Trust 2019-1A and the JetBlue Airways Pass Through Trust 2019-1B, Crédit Agricole Corporate and Investment Bank, acting through its New York Branch, as Class AA Liquidity Provider, Class A Liquidity Provider and Class B Liquidity Provider, and Wilmington Trust Company, as Subordination Agent-incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(ac)* |
Revolving Credit Agreement (2019-1B), dated as of August 27, 2020, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the trustee of JetBlue Airways Pass Through Trust 2019-1B and as Borrower, and Crédit Agricole Corporate and Investment Bank, acting through its New York Branch, as Class B Liquidity Provider-incorporated by reference to Exhibit 4.5 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(ad)*, †††† |
First Amendment to Participation Agreement (N976JT), dated as of August 27, 2020, among JetBlue Airways Corporation, Wilmington Trust Company, as Pass Through Trustee under the Pass Through Trust Agreements, Wilmington Trust Company, as Subordination Agent, Wilmington Trust Company, as Loan Trustee, and Wilmington Trust Company, in its individual capacity as set forth therein-incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
|
| 4.11(ae)†††† |
First Amendment to Indenture and Security Agreement (N976JT), dated as of August 27, 2020, between JetBlue Airways Corporation and Wilmington Trust Company, as Loan Trustee-incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(af) |
Form of Series 2019-1 Equipment Notes—incorporated by reference to Exhibit 4.11 to our Form 8-K filed on November 12, 2019, as amended by Exhibit 4.7 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.11(ag)†††† |
Schedule I (setting forth the details by which the documents referred to therein differ from the corresponding representative sample of documents included as Exhibits 4.11(ad) and 4.11(ae) with respect to Aircraft bearing Registration No. N976JT)—incorporated by reference to Exhibit 99.1 to our Current Report on Form 8-K dated August 27, 2020 and filed on August 28, 2020. |
| 4.12 |
Summary of Rights to Purchase Series A Participating Preferred Stock—incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-1, as amended (File No. 333-82576). |
| 4.13 |
Indenture, dated March 25, 2021, between JetBlue Airways Corporation, as issuer, and Wilmington Trust, National Association, as trustee—incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2021. |
| 4.13(a) |
Form of 0.50% Convertible Senior Note due 2026, dated March 25, 2021 (included as Exhibit A to Exhibit 4.13)—incorporated by reference to Exhibit 4.2 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2021. |
| 4.14 |
Warrant Agreement, dated as of April 23, 2020, between JetBlue Airways Corporation and the United States Department of the Treasury—incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020. |
| 4.14(a) |
Form of Warrant (incorporated by reference to Annex B to Exhibit 4.14)—incorporated by reference to Exhibit 4.2 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020. |
| 4.15 |
Warrant Agreement, dated as of September 29, 2020, between JetBlue Airways Corporation and the United States Department of the Treasury—incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020. |
| 4.15(a) |
Form of Warrant—incorporated by reference to Exhibit 4.1(a) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020. |
| 4.16 |
Warrant Agreement, dated as of January 15, 2021, between JetBlue Airways Corporation and the United States Department of the Treasury—incorporated by reference to Exhibit 4.16 to our Annual Report on Form 10-K for the year ended December 31, 2020. |
| 4.16(a) |
Form of Warrant (incorporated by reference to Annex B to Exhibit 4.16)—incorporated by reference to Exhibit 4.16(a) to our Annual Report on Form 10-K for the year ended December 31, 2020. |
| 4.17 |
Warrant Agreement, dated as of May 6, 2021, between JetBlue Airways Corporation and the United States Department of the Treasury—incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2021. |
| 4.17(a) |
Form of Warrant (included as Annex B to Exhibit 4.17)—incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2021. |
| 4.18 |
Amended and Restated Certificate of Incorporation of JetBlue Airways Corporation— incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K dated May 20, 2016. |
| 4.18(a) |
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of JetBlue Airways Corporation— incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K dated May 14, 2020 and filed May 20, 2020. |
| 4.19 |
Amended and Restated Bylaws of JetBlue Airways Corporation— incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K dated May 14, 2020 and filed May 20, 2020. |
|
| (1) | To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Current
Report on Form 8-K or other report to be filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act and incorporated
herein by reference. |
| (2) | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the applicable
rules thereunder. |
|
†
|
Pursuant to Instruction 2 to Item 601 of Regulation S-K, Exhibit 4.11(k) filed herewith contains a list of documents applicable to each Aircraft (other than Aircraft bearing Registration No. N976JT) that relate to the offering of the JetBlue Airways Pass Through Certificates, Series 2019-1, which documents are substantially identical to those which are filed herewith as Exhibits 4.11(h) and 4.11(i), except for the information identifying such Aircraft in question and various information relating to the principal amounts of the Equipment Notes relating to such Aircraft. Exhibit 4.11(k) sets forth the details by which such documents differ from the corresponding representative sample of documents filed herewith as Exhibits 4.11(h) and 4.11(i) with respect to Aircraft bearing Registration No. N976JT. |
| |
|
| †† |
Pursuant to Instruction 2 to Item 601 of Regulation S-K, Exhibit 4.11(x), incorporated herein by reference to Exhibit 99.1 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020, contains a list of documents applicable to each Aircraft (other than Aircraft bearing Registration No. N946JL) that relate to the offering of the JetBlue Airways Pass Through Certificates, Series 2020-1, which documents are substantially identical to those which were filed as Exhibits 4.9 and 4.10 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020, incorporated by reference herein, except for the information identifying such Aircraft in question and various information relating to the principal amounts of the Equipment Notes relating to such Aircraft. Exhibit 99.1 sets forth the details by which such documents differ from the corresponding representative sample of documents filed as Exhibits 4.9 and 4.10 with respect to Aircraft bearing Registration No. N946JL. |
| |
|
| ††† |
Pursuant to Instruction 2 to Item 601 of Regulation S-K, Exhibit 4.11(y), incorporated herein by reference to Exhibit 99.2 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020, contains a list of documents applicable to each Aircraft (other than Aircraft bearing Registration No. N2002J) that relate to the offering of the JetBlue Airways Pass Through Certificates, Series 2020-1, which documents are substantially identical to those which were filed as Exhibits 4.11 and 4.12 to our Current Report on Form 8-K dated August 17, 2020 and filed on August 18, 2020, incorporated by reference herein, except for the information identifying such Aircraft in question and various information relating to the principal amounts of the Equipment Notes relating to such Aircraft. Exhibit 99.2 sets forth the details by which such documents differ from the corresponding representative sample of documents filed as Exhibits 4.11 and 4.12 with respect to Aircraft bearing Registration No. N2002J. |
| |
|
| †††† |
Pursuant to Instruction 2 to Item 601 of Regulation S-K, Exhibit 4.11(ag), incorporated herein by reference to Exhibit 99.1 to our Current Report on Form 8-K dated August 28, 2020 and filed on August 28, 2020, contains a list of documents applicable to each Aircraft (other than Aircraft bearing Registration No. N976JT) that relate to the offering of the JetBlue Airways Pass Through Certificates, Series 2019-1B, which documents are substantially identical to those which were filed as Exhibits 4.6 and 4.7 to our Current Report on Form 8-K dated August 28, 2020 and filed on August 28, 2020, incorporated by reference herein, except for the information identifying such Aircraft in question and various information relating to the principal amounts of the Equipment Notes relating to such Aircraft. Exhibit 99.3 sets forth the details by which such documents differ from the corresponding representative sample of documents filed as Exhibits 4.6 and 4.7 with respect to Aircraft bearing Registration No. N976JT. |
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| * |
Information in this exhibit identified by brackets is confidential and has been excluded because it (i) is not material and (ii) is the type of information that the registrant treats as private or confidential. |
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on February 28, 2022.
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JETBLUE AIRWAYS CORPORATION |
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(Registrant) |
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By: |
/s/ Alexander Chatkewitz |
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Vice President, Controller, and Chief Accounting Officer (Principal Accounting Officer) |
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We, the undersigned officers and directors of
JetBlue Airways Corporation, hereby severally constitute and appoint Brandon Nelson, Allen Huang and Dora G. Habachy our true and lawful
attorneys, with full power of substitution and revocation, with full power to sign for us and in our names in the capacities indicated
below and any amendment or supplement to the Registration Statement on Form S-3 filed herewith, including any post-effective amendments
and supplements to said Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission and generally to do all such things in our name and behalf in our capacities as officers and
directors to enable JetBlue Airways Corporation to comply with the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to
said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated (and, as indicated with
an asterisk, representing at least a majority of the members of the Board of Directors).
| Signature |
Title |
Date |
| |
|
|
| /s/ Robin Hayes |
Chief Executive Officer and Director |
February 28, 2022 |
| Robin Hayes |
(Principal Executive Officer) |
| /s/ Ursula L. Hurley |
Chief Financial Officer |
February 28, 2022 |
| Ursula L. Hurley |
(Principal Financial Officer) |
| /s/ Alexander Chatkewitz |
Vice President, Controller and Chief Accounting Officer |
February 28, 2022 |
| Alexander Chatkewitz |
(Principal Accounting Officer) |
| /s/ B. Ben Baldanza |
Director |
February 28, 2022 |
| B. Ben Baldanza * |
| /s/ Peter Boneparth |
Director |
February 28, 2022 |
| Peter Boneparth * |
| /s/ Monte Ford |
Director |
February 28, 2022 |
| Monte Ford * |
| /s/ Ellen Jewett |
Director |
February 28, 2022 |
| Ellen Jewett * |
| /s/ Robert Leduc |
Director |
February 28, 2022 |
| Robert Leduc * |
| /s/ Teri P. McClure |
Director |
February 28, 2022 |
| Teri P. McClure * |
| /s/ Sarah Robb O’Hagan |
Director |
February 28, 2022 |
| Sarah Robb O’Hagan * |
| /s/ Vivek Sharma |
Director |
February 28, 2022 |
| Vivek Sharma * |
| /s/ Thomas Winkelmann |
Director |
February 28, 2022 |
| Thomas Winkelmann * |
 |
|
599
Lexington Avenue
New York, NY 10022-6069
+1.212.848.4000 |
February 28, 2022
JetBlue Airways Corporation
27-01 Queens Plaza North
Long Island City, New York 11101
Ladies and Gentlemen:
We have acted as counsel to JetBlue Airways Corporation, a Delaware corporation
(the “Company”), in connection with the preparation and filing by the Company of a registration statement on Form S-3 (the
“Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”) relating to the offering from time to time, pursuant to Rule
415 under the Securities Act by the Company or one or more selling security holders of (i) shares of common stock, par value $0.01 per
share (“Common Stock”), (ii) shares of preferred stock, par value $0.01 per share (“Preferred Stock”),
(iii) depositary shares (“Depositary Shares”), (iv) debt securities, in one or more series, (the “Debt
Securities”), (v) warrants to purchase Common Stock, Preferred Stock, Depositary Shares, Debt Securities or any combination
thereof (the “Warrants”), (vi) stock purchase contracts to purchase Common Stock, Preferred Stock or Depositary Shares
at a future date (“Stock Purchase Contracts”), (vii) stock purchase units (“Stock Purchase Units”)
representing ownership of a Stock Purchase Contract and Debt Securities or debt obligations of third parties, including United States
Treasury securities, (viii) subscription rights to purchase Common Stock, Preferred Stock, Depositary Shares or Warrants (“Subscription
Rights” and, together with the Common Stock, the Preferred Stock, the Depository Shares, the Debt Securities, the Warrants,
the Stock Purchase Contracts and the Stock Purchase Units, the “Securities”) and (ix) pass through certificates (“Pass
Through Certificates”), issued by one or more trusts formed by the Company pursuant to a trust agreement the form of which is
included as Exhibit 4.7 to the Registration Statement. The Registration Statement includes two base prospectuses, one relating to the
offering of the Securities and one relating to the offering of Pass Through Certificates (each, the “Prospectus”),
to be supplemented by one or more supplements to the applicable Prospectus.
The Debt Securities will be issued in one or more series pursuant to an
indenture proposed to be entered into between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”),
the form of which is filed as Exhibit 4.1 to the Registration Statement (the “Indenture”).
| SHEARMAN.COM |
| Shearman & Sterling LLP is a limited liability partnership organized in the United States under the laws of the state of Delaware, which laws limit the personal liability of partners. |
The Preferred Stock will be issued in one or more classes or series and
the relative powers, designations, preferences, rights and qualifications, limitations or restrictions of such Preferred Stock will be
set forth in one or more certificates of designation (each, a “Certificate of Designation”). Each Certificate
of Designation will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current
Report on Form 8-K incorporated in the Registration Statement by reference.
The Depositary Shares evidenced by depositary receipts representing fractional
shares of Preferred Stock, will be issued pursuant to a deposit agreement (each, a “Deposit Agreement”) to be entered
into between the Company and a bank or trust company, as a depositary (each, a “Depositary”). Each Deposit Agreement
will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current Report on Form 8-K
incorporated in the Registration Statement by reference.
The Warrants will be issued pursuant to a warrant agreement (each, a “Warrant
Agreement”) to be entered into between the Company and a warrant agent (each, a “Warrant Agent”). Each
Warrant Agreement will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current
Report on Form 8-K incorporated in the Registration Statement by reference.
The Stock Purchase Contracts will be issued pursuant to one or more stock
purchase contract agreements (each, a “Stock Purchase Contract Agreement”) to be entered into between the Company and
a stock purchase contract agent (each, a “Stock Purchase Contract Agent”). Each Stock Purchase Contract Agreement
will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current Report on Form 8-K
incorporated in the Registration Statement by reference.
The Stock Purchase Units will be issued pursuant to one or more stock purchase
unit agreements (each, a “Stock Purchase Unit Agreement”) to be entered into between the Company and a stock purchase
unit agent (each, a “Stock Purchase Unit Agent”). Each Stock Purchase Unit Agreement will be in a form to
be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current Report on Form 8-K incorporated in
the Registration Statement by reference.
The Subscription Rights will be issued pursuant to one or more subscription
rights agreements (each, a “Subscription Rights Agreement”) to be entered into between the Company and a subscription
rights agent (each, a “Subscription Rights Agent”). Each Subscription Rights Agreement will be in a form to
be filed as an exhibit to a post-effective amendment to the Registration Statement or a Current Report on Form 8-K incorporated in
the Registration Statement by reference.
The Pass Through Certificates will be issued by one or more pass through
trusts formed by the Company pursuant to one or more trust agreements (each, a “Trust Agreement”) to be entered into
between the Company and a trustee (each, a “Pass Through Trustee”), the form of which is included as Exhibit 4.7 to
the Registration Statement, and the related trust supplement (each, a “Trust Supplement”).
As used herein, “Transaction Agreements” means the Indenture,
Certificates of Designation, the Deposit Agreements, the Warrant Agreements, the Stock Purchase Contract Agreements, the Stock Purchase
Unit Agreements, the Subscription Rights Agreements, the Trust Agreement and any applicable underwriting or purchase agreement.
In that connection, we have reviewed the following:
| (a) | The Form of the Indenture; |
| (b) | The Form of Trust Agreement; |
| (c) | The Registration Statement; |
| (e) | Originals or copies of the amended and restated certificate of incorporation and amended and restated
bylaws of the Company, as amended through the date hereof, such other corporate records of the Company, certificates of public officials
and officers of the Company and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below. |
In our review, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
| (c) | The conformity to authentic originals of any documents submitted to us as copies. |
| (d) | As to matters of fact, the truthfulness of the representations made in the certificates of public officials
and officers of the Company. |
| (e) | That each of the Transaction Agreements is the legal, valid and binding obligation of each party thereto,
other than the Company, enforceable against each such party in accordance with its terms. |
| (f) | That each of the Transaction Agreements will be governed by New York law. |
In our opinions stated below, we assume that all of the following (collectively,
the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein:
| (a) | the Registration Statement is effective under the Securities Act. |
| (b) | an appropriate prospectus supplement or term sheet with respect to such Securities or Pass Through Certificates,
as applicable, has been prepared, delivered and filed in compliance with the Securities Act. |
| (c) | the applicable Transaction Agreements and such other agreements necessary in connection with the issuance
of such Securities or Pass Through Certificates, as applicable, shall have been duly authorized, executed and delivered by the Company
and the other parties thereto, including, if such Securities or Pass Through Certificates are to be sold or otherwise distributed pursuant
to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto. |
| (d) | the terms of the applicable Transaction Agreements and such other agreements necessary in connection
with the issuance of such Securities or Pass Through Certificates, as applicable, and the issuance and sale of such Securities or Pass
Through Certificates, as applicable, do not and will not: |
| i. |
| contravene the amended and restated certificate of incorporation, or amended and restated bylaws of
the Company; |
| ii. |
| violate any law, rule or regulation applicable to the Company; or |
| iii. |
| result in any conflict with or breach of any agreement or document binding on the Company. |
| (e) | no authorization, approval, consent or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company of any
of the Transaction Agreements and such other agreements necessary in connection with the issuance of such Securities or Pass Through Certificates,
as applicable, to which the Company is or will be a party or, if any such authorization, approval, consent, action, notice or filing is
required, it has been duly obtained, taken, given or made and is in full force and effect. |
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of
the United States of America, and the law of the State of New York (including, in each case, the rules or regulations promulgated thereunder
or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as
being applicable to the Company, Transaction Agreements and for purposes of our opinions in paragraphs 1, 2, 3, 4 and 5 below, the General
Corporation Law of the State of Delaware. Without limiting the generality of the foregoing definition of Generally Applicable Law, the
term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Company, the Transaction
Agreements or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to
any of the Transaction Agreements or any of its affiliates due to the specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such other investigation as we have deemed
necessary and subject to the qualifications set forth below, we are of the opinion that:
| 1. | The Company is a corporation validly existing and in good standing under the law of the State of Delaware. |
| 2. | The Company has the corporate power to execute, deliver and perform each of the Transaction Documents. |
| 3. | When the general conditions have been satisfied and (i) the final terms of issuance and sale of the
applicable shares of Common Stock have been duly established and approved by the board of directors of the Company in conformity with
the Company’s amended and restated certificate of incorporation, (ii) all corporate action necessary for issuance of the Common
Stock has been taken, and (iii) such shares of Common Stock are issued and delivered to the purchasers thereof against payment of the
consideration therefor duly approved by the board of directors of the Company, such shares of Common Stock will be duly authorized, validly
issued, fully paid and non-assessable. |
| 4. | When the general conditions have been satisfied and (i) the final terms of the Preferred Stock, including
any shares of Preferred Stock to be deposited with a Depositary in connection with the issuance of Depositary Shares, have been duly established
and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) such shares of Preferred Stock are issued and delivered to the purchasers thereof (or to the applicable Depositary for deposit in
accordance with the applicable Depositary Agreement in connection with the issuance of Depositary Shares) against payment of the consideration
therefor duly approved by the board of directors of the Company, and (iii) all corporate action necessary for issuance of the Preferred
Stock has been taken, including the adoption and filing of a Certificate of Designation relating thereto, the Preferred Stock will be
duly authorized, validly issued, fully paid and non-assessable. |
| 5. | When the general conditions have been satisfied and (i) the Depositary Shares have been duly established
and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) the final terms of the Depositary Shares have been duly established and approved in accordance with the applicable Depositary Agreement,
and (iii) the depositary receipts evidencing the Depositary Shares have been duly issued against deposit of the related shares of Preferred
Stock with the Depositary in accordance with the applicable Depositary Agreement and delivered to the purchasers thereof against payment
of the consideration therefore duly approved by the board of directors of the Company, the Depositary Shares will be duly authorized,
validly issued, fully paid and non-assessable and the applicable Deposit Agreement will be the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms. |
| 6. | When the general conditions have been satisfied and (i) the Debt Securities have been duly established
and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) the final terms thereof have been duly established and approved in accordance with the applicable Indenture and (iii) the Debt Securities
have been duly executed by the Company, and authenticated by the Trustee in accordance with the applicable Indenture, and delivered to
the purchasers thereof against payment of the consideration therefor duly approved by the Company, the Debt Securities will be the legal,
valid and binding obligations of the Company, enforceable against the Company, in accordance with their terms and entitled to the benefits
of the applicable Indenture. |
| 7. | When the general conditions have been satisfied and (i) the Warrants have been duly established and
approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) the final terms of the Warrants have been duly established and approved in accordance with the applicable Warrant Agreement, and
(iii) certificates representing the Warrants have been duly executed by the Company and countersigned by the applicable Warrant Agent
in accordance with the applicable Warrant Agreement and delivered to the purchasers thereof against payment of the consideration therefor
duly approved by the Company, the Warrants will be the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms and entitled to the benefits of the applicable Warrant Agreement, and the applicable Warrant Agreement
will be the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. |
| 8. | When the general conditions have been satisfied and (i) the Stock Purchase Contracts have been duly
established and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate
of incorporation, (ii) the final terms of the Stock Purchase Contracts have been duly established and approved in accordance with the
applicable Stock Purchase Contract Agreement and (iii) certificates representing the Stock Purchase Contracts have been duly executed
by the Company and countersigned by the applicable Stock Purchase Contract Agent in accordance with the applicable Stock Purchase Contract
Agreement and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, the Stock
Purchase Contracts will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the applicable Stock Purchase Contract Agreement, and the applicable Stock Purchase Contract
Agreement will be the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. |
| 9. | When the general conditions have been satisfied and (i) the Stock Purchase Units have been duly established
and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) the final terms of the Stock Purchase Units have been duly established and approved in accordance with the applicable Stock Purchase
Unit Agreement and (iii) certificates representing the Stock Purchase Units have been duly executed by the Company and countersigned by
the applicable Stock Purchase Unit Agent in accordance with the applicable Stock Purchase Unit Agreement and delivered to the purchasers
thereof against payment of the consideration therefor duly approved by the Company, the Stock Purchase Units will be the legal, valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of
the applicable Stock Purchase Unit Agreement, and the applicable Stock Purchase Unit Agreement will be the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms. |
| 10. | When the general conditions have been satisfied and (i) the Subscription Rights have been duly established
and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate of incorporation,
(ii) the final terms of the Subscription Rights have been duly established and approved in accordance with the applicable Subscription
Rights Agreement and (iii) certificates representing the Subscription Rights have been duly executed by the Company and countersigned
by the applicable Subscription Rights Agent in accordance with the applicable Subscription Rights Agreement and delivered to the purchasers
thereof against payment of the consideration therefor duly approved by the Company, the Subscription Rights will be the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the
applicable Subscription Rights Agreement, and the applicable Subscription Rights Agreement will be the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms. |
| 11. | When the general conditions have been satisfied and (i) the Pass Through Certificates have been duly
established and approved by the board of directors of the Company in conformity with the Company’s amended and restated certificate
of incorporation, (ii) the final terms of the Pass Through Certificates have been duly established and approved in accordance with the
applicable Trust Agreement and the related Trust Supplement and (iii) certificates representing the Pass Through Certificates have been
duly executed by the Company and countersigned by the applicable Pass Through Trustee in accordance with the applicable Trust Agreement
and the related Trust Supplement and delivered to the purchasers thereof against payment of the consideration therefor duly approved by
the Company, the Pass Through Certificates will be the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms and entitled to the benefits of the applicable Trust Agreement and the related Trust Supplement, and the
applicable Trust Agreement and the related Trust Supplement will be the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms. |
Our opinions expressed above are subject to the following qualifications:
(a) Our opinions
in paragraphs 5, 6, 7, 8, 9, 10 and 11 are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers).
(b) Our opinions
in paragraphs 5, 6, 7, 8, 9, 10 and 11 are also subject to the effect of general principles of equity, including without limitation concepts
of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(c) Our opinions
are limited to Generally Applicable Law, and we do not express any opinion herein concerning any other law.
This opinion letter speaks only as of the date hereof. We expressly disclaim
any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after
the date of this opinion letter and which might affect the opinions expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name 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 Securities Act or the rules and regulations
of the Commission promulgated thereunder.
Very truly yours,
/s/ Shearman & Sterling LLP
LN/ek/er
KT
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under the caption “Experts”
in this Registration Statement (Form S-3) and related Prospectuses of JetBlue Airways Corporation for the registration of common stock,
preferred stock, debt securities, depository shares, warrants, stock purchase contracts, stock purchase units, subscription rights, and
pass through certificates and to the incorporation by reference therein of our reports dated February 22, 2022, with respect to the consolidated
financial statements of JetBlue Airways Corporation, and the effectiveness of internal control over financial reporting
of JetBlue Airways Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
February 28, 2022
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
o Check if an
Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST,
NATIONAL ASSOCIATION
(Exact name of trustee as
specified in its charter)
16-1486454
(I.R.S. employer identification
no.)
1100
North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Karin
Meis
Vice President
1100
North Market Street
Wilmington, Delaware 19890-0001
(302) 651-8311
(Name, address and telephone number
of agent for service)
JETBLUE AIRWAYS CORPORATION
| (Exact name of obligor as specified in
its charter) |
| |
|
Delaware
(State or other
jurisdiction of incorporation or organization) |
87-0617894
(I.R.S. Employer
Identification No.) |
27-01 QUEENS PLAZA NORTH
LONG ISLAND CITY, NEW YORK 11101
(Address of principal executive offices,
including zip code)
Debt Securities
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington,
D.C.
| (b) | Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise
corporate trust powers. |
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records
of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not applicable
ITEM 16. LIST OF EXHIBITS.
Listed below are all exhibits
filed as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter
for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust,
National Association, incorporated herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit
4of this Form T-1. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture
Act of 1939, attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law
or the requirements of its supervising or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under
the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 28th day of February, 2022.
WILMINGTON TRUST, NATIONAL ASSOCIATION
By: /s/ Chad May
Name: Chad May
Title: Vice President
EXHIBIT 1
CHARTER OF WILMINGTON TRUST,
NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL
ASSOCIATION
For the purpose of organizing an
association to perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust,
National Association.
SECOND. The main office of the association shall be in
the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted at its main
office and its branches.
THIRD. The board of directors of this association shall
consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact
number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of
a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association
or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination of these values
may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination
of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors
may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase
the number of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15
or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected
for terms of one year and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies,
shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from
office. Despite the expiration of a director’s term,
the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of
directors and his or her position is eliminated.
Honorary or advisory members of
the board of directors, without voting power or power of final decision in matters concerning the business of the association, may be
appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted to determine the number of directors of the association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders
to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate,
on the day of each year specified therefor in the bylaws, or, if that day falls on a legal holiday in the state in which the association
is located, on the next following banking day. If no election is held on the day fixed, or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors,
or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases at
least 10 days advance notice of the time, place and purpose of a shareholders’ meeting shall be given to the shareholders by first
class mail, unless the OCC determines that an emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice
of the shareholders’ meeting.
In all elections of directors, the number
of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of
directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder
may not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each
common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board
of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association
entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made
in writing and be delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting
of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders,
such nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh
day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed
nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations
not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may
disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time
by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders
at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the
director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided,
however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against
the director’s removal.
FIFTH. The authorized amount of capital stock of
this association shall be ten thousand shares of common stock of the par value of one hundred dollars ($100) each; but said capital stock
may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock
of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of
the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold,
nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time
determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders
of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by
law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders
owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles
of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder
approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes
or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be
issued as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series
may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by
the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided
by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the
board of directors for the share dividend.
Unless otherwise provided in the bylaws,
the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before
the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before
the meeting.
If a shareholder is entitled to fractional
shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional
shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering
enough script or warrants to equal a full share; (c) if there is an established and active market in the association’s stock, make
reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase
of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full
shares representing all the fractions at public auction or to the highest bidder after having solicited and received sealed bids from
at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional
shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to vote, to receive dividends,
and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or
warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights. The script or warrants
may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before
a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association
and the proceeds paid to scriptholders.
The association, at any time and
from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations
classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry
voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification
of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members
president of this association, and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents,
a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the
records of the association, and such other officers and employees as may be required to transact the business of this association.
A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers,
employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable
terms and conditions consistent with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association’s management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made,
provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance
with law, and nothing shall raise or lower from two- thirds the percentage required for shareholder approval to increase or reduce the
capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business
and regulating the affairs of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in
whole or in part to shareholders. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power
to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders,
or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits and upon receipt
of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware,
but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change the location of any
branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject
to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this association
shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this association,
or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place,
and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting by first-class
mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder
may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval
of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term
“institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12
U.S.C. 1813(u).
Any institution-affiliated party (or
his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred
in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided,
however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement
pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors
acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or
his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified
individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or
she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety
and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or
her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person:
(i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect
to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or
administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of association
may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by
or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such
advancement in the event that such institution-affiliated party (or his or her heirs,
executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association
and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding
or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable,
the stockholders, shall not be required to find that the institution- affiliated party has met the applicable standard of conduct provided
by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board
shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel
as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that
said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the basis
of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis
of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in
any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators)
for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and
to the advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed
exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now
or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution
of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part
hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent
necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative
vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such
indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or
reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative
proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association may be amended
at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this association,
unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater
amount. The association’s board of directors may propose one or more amendments to the articles of association for submission to
the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST,
NATIONAL ASSOCIATION
AMENDED AND RESTATED
BYLAWS
OF
WILMINGTON TRUST, NATIONAL
ASSOCIATION
(Effective as
of April 17, 2018)
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting.
The annual meeting of the shareholders to elect directors and transact whatever other business may properly come before the meeting shall
be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00
o’clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board of directors may designate,
or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall be mailed by first
class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to each shareholder at his/her
address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, or in the event
of a legal holiday, on the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed,
to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the
shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2. Special Meetings. Except
as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board
of directors or by any one or more shareholders owning, in the aggregate, not less than fifty percent of the stock of the association.
Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more
than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice
stating the purpose of the meeting.
The board of directors may fix a record
date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice
to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting is the date the
first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special
meeting may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such bylaws
may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders’
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time
or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or the association
becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the
meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given
to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election
takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3. Nominations of Directors.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class
of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf
of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the association
and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21 days’ notice of the meeting is given to shareholders,
such nomination shall be mailed or delivered to the president of the association not later than the close of business on the seventh day
following the day on which the notice of meeting was mailed. Such notification shall contain the
following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed
nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers
may disregard all votes cast for each such nominee.
Section 4. Proxies. Shareholders
may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall
act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall
be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted
upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting
shall be accepted.
Section 5. Quorum. A majority
of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless
otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the articles of association,
or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the election of directors is not held on the fixed
date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1. Board of Directors.
The board of directors shall have the power to manage and administer the business and affairs of the association. Except as expressly
limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board
of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the bank from the 25-member
limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority
of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting.
The secretary or treasurer, upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect
of their election and of the time at which they are required to meet at the main office of the association, or at such other place in
the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the
association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and,
in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn
the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings.
The Board of Directors may, at any time and from time to time, by resolution designate the place, date and hour for the holding of a regular
meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without notice, on the
first Tuesday of each March, June and September, and on the second Tuesday of each December at the main office or other such place as
the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held
on the next banking business day unless the board of directors shall designate another day.
Section 5. Special Meetings.
Special meetings of the board of directors may be called by the Chairman of the Board of the association, or at the request of two or
more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person stating the time
and place of each special meeting.
Section 6. Quorum. A majority
of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws, but
a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the
number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted,
except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of directors
may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference
Telephone. Any one or more members of the board of directors or any committee thereof may participate in a meeting of such board or
committees by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 8. Procedures. The
order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person presiding
at the meeting.
Section 9. Removal of Directors.
Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by vote
of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have referred to
the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed
for cause, at any meeting of the directors notice of which shall have referred to the proposed action, by vote of a majority of the entire
Board of Directors.
Section 10. Vacancies. When any
vacancy occurs among the directors, a majority of the remaining members of the board of directors, according to the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for
that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum of the board of directors,
by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that
purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the
right to multiply the number of votes he or she is entitled to cast by the number of vacancies being filled and cast the product for a
single candidate or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason
of a resignation effective at a later date) may be filled before the vacancy occurs but the
new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has
power over and is solely responsible for the management, supervision, and administration of the association. The board of directors may
delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally
ratify written policies authorized by committees of the board of directors before such policies become effective. Each committee must
have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the association,
who serve at the pleasure of the board of directors. Provisions of the articles of association and these bylaws governing place of meetings,
notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. The creation
of a committee and appointment of members to it must be approved by the board of directors.
Section 1. Loan Committee. There
shall be a loan committee composed of not less than 2 directors, appointed by the board of directors annually or more often. The loan
committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell
bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when
the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee
shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which
a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the board
of directors.
Section 2. Investment Committee.
There shall be an investment committee composed of not less than 2 directors, appointed by the board of directors annually or more often.
The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments
thereto, to purchase and sell securities, to exercise authority regarding investments and to exercise, when the board of directors is
not in session, all other powers of the board of directors regarding investment securities that may be lawfully delegated. The investment
committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors
at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the
board of directors.
Section 3. Examining Committee.
There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board
of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within
15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only
to the board of directors and to report the result of such examination in writing to the board of directors at the next regular meeting
thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures
are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the association
as shall be deemed advisable.
Notwithstanding the provisions of
the first paragraph of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be given
over to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of
directors.
Section 4. Trust Audit Committee.
There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees.
The board of directors may appoint, from time to time, from its own members, compensation, special litigation and other committees of
one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (5) | Amend articles of association; |
| (6) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares. |
Section 6. Committee Members’
Fees. Committee members may receive a fee for their services as committee members and traveling and other out-of-pocket expenses incurred
in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or
a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the
fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1. Officers. The
board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following the annual meeting of the
shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one or more Vice Presidents,
a Corporate Secretary, a Treasurer, a General Auditor, and such other officers as it may determine. At the Annual Reorganization Meeting,
the board of directors shall also elect or reelect all of the officers of the association to hold office until the next Annual Reorganization
Meeting. In the interim between Annual Reorganization Meetings, the board of directors may also elect or appoint a Chief Executive Officer,
a President or such additional officers to the rank of Vice President, including (without limitation as to title or number) one or more
Administrative Vice Presidents, Group Vice Presidents, Senior Vice Presidents and Executive Vice Presidents, and any other officer positions
as they deem necessary and appropriate. The Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T
Bank, and any one executive Vice Chairman of M&T Bank, acting jointly, may appoint one or more officers to the rank of Executive Vice
President or Senior Vice President. The head of the Human Resources Department of M&T Bank or his or her designee or designees, may
appoint other officers up to the rank of Group Vice President, including (without limitation as to title or number) one or more Administrative
Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors,
and any other officer positions as they deem necessary and appropriate. Each such person elected or appointed by the board of directors,
the Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T Bank, and an executive Vice Chairman
of M&T Bank, acting jointly, or the head of the Human Resources Department of M&T Bank or his or her designee or designees, in
between Annual Reorganization Meetings shall hold office until the next Annual Reorganization Meeting unless otherwise determined by the
board of directors or such authorized officers.
Section 2. Chairperson of the Board.
The board of directors shall appoint one of its members to be the chairperson of the board to serve at its pleasure. Such person shall
preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted
or approved by the board of directors; shall have general executive powers, as well as the specific powers conferred by these bylaws;
and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the board
of directors.
Section 3. President. The board
of directors shall appoint one of its members to be the president of the association. In the absence of the chairperson, the president
shall preside at any meeting of the board of directors. The president shall have general executive powers and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice to the office of president, or imposed by these bylaws.
The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the
board of directors.
Section 4. Vice President. The board of directors
may appoint one or more vice presidents.
Each vice president shall have such powers and duties
as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence of the
president, to perform all the duties of the president.
Section 5. Secretary. The board
of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary of the board of directors and of
the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required
by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association; shall provide for the keeping
of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by
law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall
also perform such other duties as may be assigned from time to time, by the board of directors.
Section 6. Other Officers. The
board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or more assistant secretaries, one
or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as
from time to time may appear to the board of directors to be required or desirable to transact the business of the association. Such officers
shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned
to them by the board of directors, the chairperson of the board, or the president. The board of directors may authorize an officer to
appoint one or more officers or assistant officers.
Section 7. Tenure of Office.
The president and all other officers shall hold office for the current year for which the board of directors was elected, unless they
shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly by the
board of directors.
Section 8. Resignation.
An officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee.
There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board of directors, which shall, at
least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable audits to
be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers have been administered according
to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include
any officers of the bank or an affiliate who participate significantly in the administration of the bank’s fiduciary activities;
and (2) must consist of a majority of members who are not also members of any committee to which the board of directors has delegated
power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the
first paragraph of this section 1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over
to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There
shall be maintained by the association all fiduciary records necessary to assure that its fiduciary responsibilities have been properly
undertaken and discharged.
Section 3. Trust Investments.
Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable
law. Where such instrument does not specify the character and class of investments to be made, but does vest in the association investment
discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable
law.
ARTICLE VI
Stock and Stock Certificates
Section 1. Transfers. Shares
of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall
be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder’s shares, succeed to all
rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the stock reasonably calculated
to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect
it against fraudulent transfers.
Section 2. Stock Certificates.
Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually
or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board
of directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate
shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or
use procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure
through which the beneficial owner of shares that are registered in the name of a nominee may be recognized by the association as the
shareholder. The procedure may set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to
recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal
of the association shall be in such form as may be determined from time to time by the board of directors. The president, the treasurer,
the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall
have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate obligation
for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year.
The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments.
All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed,
executed, acknowledged, verified, delivered or accepted on behalf of the association by the chairperson of the board, or the president,
or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary powers of the association,
by any of those offices or by any trust officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted
on behalf of the association in such other manner and by such other officers as the board of directors may from time to time direct. The
provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records. The articles
of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of
the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed
by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate
Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices,
the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter)
with respect to matters of corporate governance procedures.
Section 5. Indemnification. For
purposes of this Section 5 of Article VIII, the term “institution- affiliated party” shall mean any institution-affiliated
party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or
his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred
in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided,
however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement
pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated
parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred.
The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated
party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the
board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors
acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or
his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party
(or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to
which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct
of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C.
1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her
heirs, executors or administrators) in connection with any action or proceeding as to which
indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of
such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf
of his or her heirs, executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his
or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and
(b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or,
if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable,
the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided
by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of
Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board
of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board
shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel
as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel
opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of
these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect
at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect
at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction
as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are
sought were parties to a separate written agreement.
The rights of indemnification and to
the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any
other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or hereafter be
otherwise entitled whether contained in the association’s articles of association, these bylaws, a resolution of stockholders, a
resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly
authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement
of expenses provided in these bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-
affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in
his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any
part thereof.
If this Section 5 of Article VIII or
any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum
extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative
vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such
indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing
civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution-
affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection.
A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office of the
association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The bylaws
of the association may be amended, altered or repealed, at any regular meeting of the board of directors, by a vote of a majority of the
total number of the directors except as provided below, and provided that the following language accompany any such change.
I, Chad May,
certify that: (1) I am the duly constituted (secretary or treasurer) of Wilmington Trust, National Association and secretary of its board of
directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association,
and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature on this 25 day
of February 2022.
/s/ Chad May
_____________________________________________
(Secretary or Treasurer)
The association’s shareholders
may amend or repeal the bylaws even though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
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| WILMINGTON TRUST, NATIONAL ASSOCIATION |
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Dated: |
February 28, 2022 |
| By: |
/s/ Chad May |
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Name: | Chad May |
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Title: | Vice President |
EXHIBIT 7
R E P O R T O F C
O N D I T I O N
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business
on September 30, 2021
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| ASSETS |
Thousands of Dollars |
| Cash and balances due from depository institutions |
9,603,463 |
| Securities |
5,982 |
| Federal funds sold and securities purchased under agreement to resell |
0 |
| Loans and leases held for sale |
0 |
| Loans and leases net of unearned income, allowance |
96,024 |
| Premises and fixed asset |
25,601 |
| Other real estate owned |
348 |
| Investments in unconsolidated subsidiaries and associated companies |
0 |
| Direct and indirect investments in real estate ventures |
0 |
| Intangible assets |
202 |
| Other assets |
69,334 |
| Total Assets |
9,800,954 |
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| LIABILITIES |
Thousands of Dollars |
| Deposits |
9,005,595 |
| Federal funds purchased and securities sold under agreements to repurchase |
0 |
| Other borrowed money: |
0 |
| Other Liabilities |
83,299 |
| Total Liabilities |
9,088,894 |
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| EQUITY CAPITAL |
Thousands of Dollars |
| Common Stock |
1,000 |
| Surplus |
462,585 |
| Retained Earnings |
248,572 |
| Accumulated other comprehensive income |
(97) |
| Total Equity Capital |
712,060 |
| Total Liabilities and Equity Capital |
9,800,954 |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
o Check if an
Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST,
NATIONAL ASSOCIATION
(Exact name of trustee as
specified in its charter)
16-1486454
(I.R.S. employer identification
no.)
1100
North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Karin
Meis
Vice President
1100
North Market Street
Wilmington, Delaware 19890-0001
(302) 651-8311
(Name, address and telephone number
of agent for service)
JETBLUE AIRWAYS CORPORATION
| (Exact name of obligor as specified in
its charter) |
| |
Delaware
(State or other
jurisdiction of incorporation or organization) |
87-0617894
(I.R.S. Employer
Identification No.) |
27-01 QUEENS PLAZA NORTH
LONG ISLAND CITY, NEW YORK 11101
(Address of principal executive offices,
including zip code)
Pass Through Trust Certificates
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington,
D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise
corporate trust powers. |
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records
of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not applicable.
ITEM 16. LIST OF EXHIBITS.
Listed below are all exhibits
filed as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter
for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust,
National Association, incorporated herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit
4 of this Form T-1. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture
Act of 1939, attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law
or the requirements of its supervising or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under
the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 28th day of February, 2022.
WILMINGTON TRUST, NATIONAL ASSOCIATION
By: /s/ Chad May
Name: Chad May
Title: Vice President
EXHIBIT 1
CHARTER OF WILMINGTON TRUST,
NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL
ASSOCIATION
For the purpose of organizing an
association to perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust,
National Association.
SECOND. The main office of the association shall be in
the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted at its main
office and its branches.
THIRD. The board of directors of this association shall
consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact
number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of
a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association
or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination of these values
may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination
of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors
may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase
the number of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15
or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected
for terms of one year and until their successors are elected and qualified. Terms of directors, including directors selected to fill
vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are
removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor
is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of
the board of directors, without voting power or power of final decision in matters concerning the business of the association, may be
appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted to determine the number of directors of the association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders
to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate,
on the day of each year specified therefor in the bylaws, or, if that day falls on a legal holiday in the state in which the association
is located, on the next following banking day. If no election is held on the day fixed, or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors,
or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases at
least 10 days advance notice of the time, place and purpose of a shareholders’ meeting shall be given to the shareholders by first
class mail, unless the OCC determines that an emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice
of the shareholders’ meeting.
In all elections of directors, the number
of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of
directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder
may not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each
common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board
of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association
entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made
in writing and be delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting
of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders,
such nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh
day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed
nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations
not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may
disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time
by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders
at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the
director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided,
however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against
the director’s removal.
FIFTH. The authorized amount of capital stock of
this association shall be ten thousand shares of common stock of the par value of one hundred dollars ($100) each; but said capital stock
may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock
of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of
the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold,
nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to
time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote
of holders of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or
required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved
by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one
vote per share.
Unless otherwise specified in these articles
of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder
approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes
or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be
issued as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series
may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by
the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided
by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the
board of directors for the share dividend.
Unless otherwise provided in the bylaws,
the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before
the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before
the meeting.
If a shareholder is entitled to fractional
shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional
shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering
enough script or warrants to equal a full share; (c) if there is an established and active market in the association’s stock, make
reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase
of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full
shares representing all the fractions at public auction or to the highest bidder after having solicited and received sealed bids from
at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional
shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to vote, to receive dividends,
and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or
warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights. The script or warrants
may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before
a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association
and the proceeds paid to scriptholders.
The association, at any time and
from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations
classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry
voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification
of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members
president of this association, and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents,
a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the
records of the association, and such other officers and employees as may be required to transact the business of this association.
A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers,
employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable
terms and conditions consistent with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association’s management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made,
provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance
with law, and nothing shall raise or lower from two- thirds the percentage required for shareholder approval to increase or reduce the
capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business
and regulating the affairs of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in
whole or in part to shareholders. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power
to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders,
or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits and upon receipt
of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware,
but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change the location of any
branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject
to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this association
shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this association,
or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place,
and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting by first-class
mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder
may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval
of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term
“institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12
U.S.C. 1813(u).
Any institution-affiliated party (or
his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred
in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided,
however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement
pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors
acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or
his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified
individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or
she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety
and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or
her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person:
(i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect
to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or
administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of association
may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by
or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such
advancement in the event that such institution-affiliated party (or his or her heirs,
executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association
and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding
or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable,
the stockholders, shall not be required to find that the institution- affiliated party has met the applicable standard of conduct provided
by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board
shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel
as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that
said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the basis
of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis
of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in
any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators)
for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and
to the advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed
exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now
or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution
of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part
hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent
necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative
vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such
indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or
reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative
proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association may be amended
at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this association,
unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater
amount. The association’s board of directors may propose one or more amendments to the articles of association for submission to
the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST,
NATIONAL ASSOCIATION
AMENDED AND RESTATED
BYLAWS
OF
WILMINGTON TRUST, NATIONAL
ASSOCIATION
(Effective as
of April 17, 2018)
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting.
The annual meeting of the shareholders to elect directors and transact whatever other business may properly come before the meeting shall
be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00
o’clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board of directors may designate,
or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall be mailed by first
class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to each shareholder at his/her
address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, or in the event
of a legal holiday, on the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed,
to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the
shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2. Special Meetings. Except
as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board
of directors or by any one or more shareholders owning, in the aggregate, not less than fifty percent of the stock of the association.
Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more
than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice
stating the purpose of the meeting.
The board of directors may fix a record
date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice
to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting is the date the
first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special
meeting may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such bylaws
may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders’
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time
or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or the association
becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the
meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given
to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election
takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3. Nominations of Directors.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class
of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf
of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the association
and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21 days’ notice of the meeting is given to shareholders,
such nomination shall be mailed or delivered to the president of the association not later than the close of business on the seventh day
following the day on which the notice of meeting was mailed. Such notification shall contain the
following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed
nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers
may disregard all votes cast for each such nominee.
Section 4. Proxies. Shareholders
may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall
act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall
be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted
upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting
shall be accepted.
Section 5. Quorum. A majority
of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless
otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the articles of association,
or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the election of directors is not held on the fixed
date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1. Board of Directors.
The board of directors shall have the power to manage and administer the business and affairs of the association. Except as expressly
limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board
of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the bank from the 25-member
limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority
of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting.
The secretary or treasurer, upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect
of their election and of the time at which they are required to meet at the main office of the association, or at such other place in
the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the
association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and,
in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn
the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings.
The Board of Directors may, at any time and from time to time, by resolution designate the place, date and hour for the holding of a regular
meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without notice, on the
first Tuesday of each March, June and September, and on the second Tuesday of each December at the main office or other such place as
the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held
on the next banking business day unless the board of directors shall designate another day.
Section 5. Special Meetings.
Special meetings of the board of directors may be called by the Chairman of the Board of the association, or at the request of two or
more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person stating the time
and place of each special meeting.
Section 6. Quorum. A majority
of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws, but
a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the
number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted,
except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of directors
may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference
Telephone. Any one or more members of the board of directors or any committee thereof may participate in a meeting of such board or
committees by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 8. Procedures. The
order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person presiding
at the meeting.
Section 9. Removal of Directors.
Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by vote
of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have referred to
the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed
for cause, at any meeting of the directors notice of which shall have referred to the proposed action, by vote of a majority of the entire
Board of Directors.
Section 10. Vacancies. When any
vacancy occurs among the directors, a majority of the remaining members of the board of directors, according to the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for
that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum of the board of directors,
by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that
purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the
right to multiply the number of votes he or she is entitled to cast by the number of vacancies being filled and cast the product for a
single candidate or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason
of a resignation effective at a later date) may be filled before the vacancy occurs but the
new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has
power over and is solely responsible for the management, supervision, and administration of the association. The board of directors may
delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally
ratify written policies authorized by committees of the board of directors before such policies become effective. Each committee must
have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the association,
who serve at the pleasure of the board of directors. Provisions of the articles of association and these bylaws governing place of meetings,
notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. The creation
of a committee and appointment of members to it must be approved by the board of directors.
Section 1. Loan Committee. There
shall be a loan committee composed of not less than 2 directors, appointed by the board of directors annually or more often. The loan
committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell
bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when
the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee
shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which
a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the board
of directors.
Section 2. Investment Committee.
There shall be an investment committee composed of not less than 2 directors, appointed by the board of directors annually or more often.
The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments
thereto, to purchase and sell securities, to exercise authority regarding investments and to exercise, when the board of directors is
not in session, all other powers of the board of directors regarding investment securities that may be lawfully delegated. The investment
committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors
at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the
board of directors.
Section 3. Examining Committee.
There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board
of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within
15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only
to the board of directors and to report the result of such examination in writing to the board of directors at the next regular meeting
thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures
are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the association
as shall be deemed advisable.
Notwithstanding the provisions of
the first paragraph of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be given
over to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of
directors.
Section 4. Trust Audit Committee.
There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees.
The board of directors may appoint, from time to time, from its own members, compensation, special litigation and other committees of
one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (5) | Amend articles of association; |
| (6) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares. |
Section 6. Committee Members’
Fees. Committee members may receive a fee for their services as committee members and traveling and other out-of-pocket expenses incurred
in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or
a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the
fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1. Officers. The
board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following the annual meeting of the
shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one or more Vice Presidents,
a Corporate Secretary, a Treasurer, a General Auditor, and such other officers as it may determine. At the Annual Reorganization Meeting,
the board of directors shall also elect or reelect all of the officers of the association to hold office until the next Annual Reorganization
Meeting. In the interim between Annual Reorganization Meetings, the board of directors may also elect or appoint a Chief Executive Officer,
a President or such additional officers to the rank of Vice President, including (without limitation as to title or number) one or more
Administrative Vice Presidents, Group Vice Presidents, Senior Vice Presidents and Executive Vice Presidents, and any other officer positions
as they deem necessary and appropriate. The Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T
Bank, and any one executive Vice Chairman of M&T Bank, acting jointly, may appoint one or more officers to the rank of Executive Vice
President or Senior Vice President. The head of the Human Resources Department of M&T Bank or his or her designee or designees, may
appoint other officers up to the rank of Group Vice President, including (without limitation as to title or number) one or more Administrative
Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors,
and any other officer positions as they deem necessary and appropriate. Each such person elected or appointed by the board of directors,
the Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T Bank, and an executive Vice Chairman
of M&T Bank, acting jointly, or the head of the Human Resources Department of M&T Bank or his or her designee or designees, in
between Annual Reorganization Meetings shall hold office until the next Annual Reorganization Meeting unless otherwise determined by the
board of directors or such authorized officers.
Section 2. Chairperson of the Board.
The board of directors shall appoint one of its members to be the chairperson of the board to serve at its pleasure. Such person shall
preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted
or approved by the board of directors; shall have general executive powers, as well as the specific powers conferred by these bylaws;
and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the board
of directors.
Section 3. President. The board
of directors shall appoint one of its members to be the president of the association. In the absence of the chairperson, the president
shall preside at any meeting of the board of directors. The president shall have general executive powers and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice to the office of president, or imposed by these bylaws.
The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the
board of directors.
Section 4. Vice President. The board of directors
may appoint one or more vice presidents. Each vice president shall have such powers and duties as may be assigned by the board of directors.
One vice president shall be designated by the board of directors, in the absence of the president, to perform all the duties of the president.
Section 5. Secretary. The board
of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary of the board of directors and of
the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required
by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association; shall provide for the keeping
of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by
law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall
also perform such other duties as may be assigned from time to time, by the board of directors.
Section 6. Other Officers. The
board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or more assistant secretaries, one
or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as
from time to time may appear to the board of directors to be required or desirable to transact the business of the association. Such officers
shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned
to them by the board of directors, the chairperson of the board, or the president. The board of directors may authorize an officer to
appoint one or more officers or assistant officers.
Section 7. Tenure of Office.
The president and all other officers shall hold office for the current year for which the board of directors was elected, unless they
shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly by the
board of directors.
Section 8. Resignation.
An officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee.
There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board of directors, which shall, at
least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable audits to
be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers have been administered according
to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include
any officers of the bank or an affiliate who participate significantly in the administration of the bank’s fiduciary activities;
and (2) must consist of a majority of members who are not also members of any committee to which the board of directors has delegated
power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the
first paragraph of this section 1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over
to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There
shall be maintained by the association all fiduciary records necessary to assure that its fiduciary responsibilities have been properly
undertaken and discharged.
Section 3. Trust Investments.
Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable
law. Where such instrument does not specify the character and class of investments to be made, but does vest in the association investment
discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable
law.
ARTICLE VI
Stock and Stock Certificates
Section 1. Transfers. Shares
of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall
be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder’s shares, succeed to all
rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the stock reasonably calculated
to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect
it against fraudulent transfers.
Section 2. Stock Certificates.
Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually
or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board
of directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate
shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or
use procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure
through which the beneficial owner of shares that are registered in the name of a nominee may be recognized by the association as the
shareholder. The procedure may set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to
recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal
of the association shall be in such form as may be determined from time to time by the board of directors. The president, the treasurer,
the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall
have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate obligation
for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year.
The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments.
All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed,
executed, acknowledged, verified, delivered or accepted on behalf of the association by the chairperson of the board, or the president,
or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary powers of the association,
by any of those offices or by any trust officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted
on behalf of the association in such other manner and by such other officers as the board of directors may from time to time direct. The
provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records. The articles
of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of
the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed
by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate
Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices,
the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter)
with respect to matters of corporate governance procedures.
Section 5. Indemnification. For
purposes of this Section 5 of Article VIII, the term “institution- affiliated party” shall mean any institution-affiliated
party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or
his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred
in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided,
however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement
pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated
parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred.
The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated
party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the
board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors
acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or
his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party
(or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to
which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct
of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C.
1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her
heirs, executors or administrators) in connection with any action or proceeding as to which
indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of
such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf
of his or her heirs, executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his
or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and
(b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or,
if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable,
the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided
by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of
Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board
of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board
shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel
as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel
opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of
these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect
at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect
at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction
as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are
sought were parties to a separate written agreement.
The rights of indemnification and to
the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any
other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or hereafter be
otherwise entitled whether contained in the association’s articles of association, these bylaws, a resolution of stockholders, a
resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly
authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement
of expenses provided in these bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-
affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in
his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any
part thereof.
If this Section 5 of Article VIII or
any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum
extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative
vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such
indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing
civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution-
affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection.
A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office of the
association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The bylaws
of the association may be amended, altered or repealed, at any regular meeting of the board of directors, by a vote of a majority of the
total number of the directors except as provided below, and provided that the following language accompany any such change.
I, Chad May, certify that: (1) I am the duly
constituted (secretary or treasurer) of Wilmington Trust, National Association and secretary of its board of
directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association, and
all of them are now lawfully in force and effect.
I have hereunto affixed my official signature on
this 25 day of February 2022.
/s/ Chad May
___________________________________________
(Secretary or Treasurer)
The association’s shareholders
may amend or repeal the bylaws even though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
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| WILMINGTON TRUST, NATIONAL ASSOCIATION |
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Dated: |
February 28, 2022 |
| By: |
/s/ Chad May |
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Name: | Chad May |
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Title: | Vice President |
EXHIBIT 7
R E P O R T O F C
O N D I T I O N
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business
on September 30, 2021
| |
|
| ASSETS |
Thousands of Dollars |
| Cash and balances due from depository institutions |
9,603,463 |
| Securities |
5,982 |
| Federal funds sold and securities purchased under agreement to resell |
0 |
| Loans and leases held for sale |
0 |
| Loans and leases net of unearned income, allowance |
96,024 |
| Premises and fixed asset |
25,601 |
| Other real estate owned |
348 |
| Investments in unconsolidated subsidiaries and associated companies |
0 |
| Direct and indirect investments in real estate ventures |
0 |
| Intangible assets |
202 |
| Other assets |
69,334 |
| Total Assets |
9,800,954 |
| |
|
| |
|
| LIABILITIES |
Thousands of Dollars |
| Deposits |
9,005,595 |
| Federal funds purchased and securities sold under agreements to repurchase |
0 |
| Other borrowed money: |
0 |
| Other Liabilities |
83,299 |
| Total Liabilities |
9,088,894 |
| |
|
| |
|
| EQUITY CAPITAL |
Thousands of Dollars |
| Common Stock |
1,000 |
| Surplus |
462,585 |
| Retained Earnings |
248,572 |
| Accumulated other comprehensive income |
(97) |
| Total Equity Capital |
712,060 |
| Total Liabilities and Equity Capital |
9,800,954 |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
JETBLUE AIRWAYS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Carry Forward Form Type |
Carry Forward File Number |
Carry
Forward
Initial effective date |
Filing Fee Previously Paid In Connection
with
Unsold Securities
to
be Carried Forward |
| Newly Registered Securities |
Fees to Be
Paid |
Equity |
Common Stock, $0.01 par value per share |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Equity |
Preferred Stock, $0.01 par value per share |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Debt |
Debt Securities |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Equity |
Depositary Shares(3) |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Other(4) |
Warrants(4) |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Other(5) |
Stock Purchase Contracts(5) |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Other(6) |
Stock Purchase Units(6) |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Other(7) |
Subscription Rights(7) |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Debt |
Pass Through Certificates |
Rule 456(b) and
Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
Fees
Previously
Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
|
|
| Carry Forward Securities |
Carry
Forward
Securities |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
| |
Total Offering Amounts |
|
N/A |
|
N/A |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
N/A |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
N/A |
|
|
|
|
| |
Net Fee Due |
|
|
|
N/A |
|
|
|
|
| (1) | The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, to defer payment of all of
the registration fee. In connection with the securities offered hereby, the Registrant will pay “pay-as-you-go registration fees”
in accordance with Rule 456(b). The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this
Registration Statement based on the fee payment rate in effect on the date of such fee payment. |
| (2) | An unspecified aggregate initial offering price and number of securities of each identified class is being registered and may from
time to time be offered at unspecified prices. The securities registered also include such unspecified amounts and numbers of common stock,
preferred stock and debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide
for conversion or exchange or pursuant to the anti-dilution provisions of any such securities. Separate consideration may or may not be
received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units. |
| (3) | The depositary shares registered hereunder will be evidenced by depositary receipts issued pursuant to a deposit agreement. If we
elect to offer to the public fractional interests in shares of the preferred stock registered hereunder, depositary receipts will be distributed
to those persons purchasing the fractional interests and shares of preferred stock will be issued to the depositary under the deposit
agreement. No separate consideration will be received for the depositary shares. |
| (4) | Warrants to purchase common stock, preferred stock, depositary shares or any combination thereof. |
| (5) | Representing rights to purchase common stock, preferred stock or depositary shares. Includes an indeterminable number of shares of
common stock, preferred stock or depositary shares to be issuable by us upon settlement of the stock purchase contracts or stock purchase
units. |
| (6) | Representing ownership of stock purchase contracts and our debt securities or debt obligations of third parties, including U.S. Treasury
Securities. |
| (7) | Rights evidencing the right to purchase common stock, preferred stock, depositary shares or warrants. |