As filed with the Securities and Exchange Commission on March 31, 2021
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SIMMONS FIRST NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
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Arkansas
(State or other jurisdiction of
incorporation or organization)
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71-0407808
(I.R.S. Employer
Identification Number)
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501 Main Street
Pine Bluff, Arkansas 71601
(870) 541-1000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
George A. Makris, Jr.
Chairman and Chief Executive Officer
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
(870) 541-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
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George A. Makris, III
Executive Vice President,
General Counsel and Secretary
Simmons First National Corporation
601 East 3rd Street, 12th Floor
Little Rock, Arkansas 72201
(501) 558-3162
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Frank M. Conner III
Matthew C. Franker
Covington & Burling LLP
One CityCenter
850 Tenth Street N.W.
Washington, D.C. 20001
(202) 662-6000
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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 interest reinvestment plans, please check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
Non-accelerated filer
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☒
☐
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Accelerated filer
Small reporting company
Emerging growth company
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☐
☐
☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of each Class of
Securities to be Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Unit(1)
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Proposed
Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(2)
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Class A Common Stock, par value $0.01 per share
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Preferred Stock, par value $0.01 per share
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Debt Securities
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Depositary Shares(3)
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Warrants(4)
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Purchase Contracts(5)
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Purchase Units(6)
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Subscription Rights
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Units(7)
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(1)
An indeterminate number and aggregate initial offering price of securities of each identified class are being registered as may from time to time be offered at indeterminate prices, including an indeterminate number or amount of securities that may be issued upon the exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, settlement, exchange or conversion of other securities.
(2)
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the registrant is deferring payment of all of the registration fee.
(3)
Each depositary share will be issued under a deposit agreement and will represent a fractional share or multiple shares of preferred stock.
(4)
Includes warrants to purchase common stock, preferred stock or debt securities.
(5)
Purchase contracts may be issued separately or as purchase units.
(6)
Purchase units may consist of a purchase contract and debt securities registered under this registration statement or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the common stock, preferred stock or debt securities under the purchase contracts.
(7)
Each unit will be issued under a unit agreement and will represent an interest in two or more securities registered hereunder, which may or may not be separable from one another.
PROSPECTUS
Class A Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Purchase Units
Subscription Rights
Units
We may offer and sell from time to time, together or separately, in one or more offerings, any combination of the securities listed above. The securities we may offer may be convertible into or exchangeable for other securities. The securities listed above may be offered by us and/or may be offered and sold, from time to time, by one or more selling shareholders to be identified in the future. This prospectus provides a general description of these securities. Each time we offer any securities pursuant to this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. You should read this prospectus, the information incorporated by reference in this prospectus, the accompanying prospectus supplement, including any information incorporated by reference therein, and any free writing prospectus carefully before you invest in the securities described in the applicable prospectus supplement.
Our common stock is listed on the Nasdaq Global Select Market and trades under the ticker symbol “SFNC.”
We may offer and sell these securities to or through one or more underwriters, dealers and agents, directly to purchasers or through a combination of these methods, on a continuous or delayed basis from time to time. The names of any underwriters, dealers or agents involved in the distribution of our securities, their compensation and any option they hold to acquire additional securities will be described in the applicable prospectus supplement. See “Plan of Distribution.” Net proceeds from the sale of securities will be set forth in the applicable prospectus supplement.
This prospectus may not be used to sell securities unless accompanied by the applicable prospectus supplement.
Investing in our securities involves certain risks. See “Risk Factors” beginning on page 6 of this prospectus and contained in our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated herein by reference, as well as any risk factors included in, or incorporated by reference into, the applicable prospectus supplement, to read about factors you should consider before buying any securities issued by us.
These securities are not savings accounts, deposits or other obligations of any of our bank and non-bank subsidiaries and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency.
Neither the U.S. Securities and Exchange Commission, any state securities commission, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System nor any other regulatory body has approved or disapproved of these securities or determined if this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 31, 2021.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, as a “well-known seasoned issuer,” as defined under Rule 405 under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration statement, we may offer and sell from time to time any combination of our Class A common stock, which we refer to as our common stock, preferred stock, senior debt securities, subordinated debt securities, depositary shares, warrants, purchase contracts, purchase units, subscription rights and units in one or more offerings up to an indeterminate total dollar amount. The preferred stock, debt securities, warrants, purchase contracts, purchase units, subscription rights and units may be convertible into or exercisable or exchangeable for common or preferred stock or other securities issued by us or debt or equity securities issued by one or more other entities.
This prospectus provides you with a general description of the securities we may offer. Each time we offer and sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under the heading “Where You Can Find More Information.” We may also prepare free writing prospectuses that describe particular securities. Any free writing prospectus should also be read in connection with this prospectus and with any prospectus supplement referred to therein. For purposes of this prospectus, any reference to an applicable prospectus supplement may also refer to a free writing prospectus, unless the context otherwise requires. Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “we,” “our,” “us,” “ourselves,” and “the Company” refer to Simmons First National Corporation, an Arkansas corporation, and its consolidated subsidiaries.
The registration statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities offered under this prospectus. The registration statement can be read at the SEC website or at the SEC offices mentioned under the heading “Where You Can Find More Information.”
The distribution of this prospectus and any applicable prospectus supplement and the offering of the securities in certain jurisdictions may be restricted by law. Persons into whose possession this prospectus and any applicable prospectus supplement come should inform themselves about and observe any such restrictions. This prospectus and any applicable prospectus supplement do not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov.
The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have been incorporated by reference, by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in all cases, if you are considering whether to rely on information contained in this prospectus or information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later. We incorporate by reference the documents listed below (File No. 000-06253), which are considered to be a part of this prospectus:
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our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on February 25, 2021;
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the information in our Definitive Proxy Statement on Schedule 14A for our 2020 Annual Meeting of Shareholders, filed with the SEC on March 17, 2020, to the extent incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on February 27, 2020;
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All reports and other documents we subsequently file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, until our offering is completed will also be incorporated by reference into this prospectus and deemed to be part hereof (other than any information furnished to, rather than filed with, the SEC, unless expressly stated otherwise therein). The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus commencing on the date on which the document is filed.
Any documents incorporated by reference into this prospectus are available without charge to you on the Internet at www.simmonsbank.com or by contacting our Investor Relations officer at Simmons First National Corporation, P.O. Box 7009, Pine Bluff, Arkansas 71611, Attention: Steve Massanelli, (870) 541-1000. The reference to our website is not intended to be an active link and the information on our website is not, and you must not consider the information to be, a part of this prospectus.
You should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement. Neither we nor any underwriter or agent have authorized anyone else to provide you with additional or different information. We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in jurisdictions where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement or any document incorporated by reference is accurate as of any date other than the dates of the applicable documents.
FORWARD-LOOKING STATEMENTS
Some of the statements included in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein, may include forward-looking statements that reflect our current views with respect to future events and financial performance that are provided under the “safe harbor” protection of the Private Securities Litigation Reform Act of 1995. These forward-looking statements may be identified by reference to a future period(s) or by the use of forward-looking terminology, such as “anticipate,” “believe,” “budget,” “contemplate,” “continue,” estimate,” “expect,” “foresee,” “intend,” “indicate,” “likely,” “target,” “plan,” “positions,” “prospects,” “project,” “predict,” or “potential,” by future conditional verbs such as “could,” “may,” “might,” “should,” “will,” or “would,” by variations of such words or by similar expressions.
These forward-looking statements include, without limitation, those relating to our future growth, revenue, expenses, assets, asset quality, profitability, earnings, accretion, customer service, investment in digital channels, critical accounting policies, net interest margin, non-interest revenue, market conditions related to and the impact of our stock repurchase program, consumer habits, our ability to recruit and retain key employees, the adequacy of the allowance for credit losses, the impacts of the COVID-19 pandemic and the ability of the Company to manage the impacts of the COVID-19 pandemic, the impacts of our and its customers’ participation in the Paycheck Protection Program, income tax deductions, credit quality, the level of credit losses from lending commitments, net interest revenue, interest rate sensitivity, loan loss experience, liquidity, capital resources, market risk, plans for investments in securities, effect of future litigation, acquisition strategy, legal and regulatory limitations and compliance and competition.
These forward-looking statements involve risks and uncertainties, and may not be realized due to a variety of factors, including, without limitation: changes in our operating, acquisition, or expansion strategy; the effects of future economic conditions (including unemployment levels and slowdowns in economic growth), governmental monetary and fiscal policies, as well as legislative and regulatory changes; the impacts of the COVID-19 pandemic on our operations and performance; the ultimate effect of measures the Company takes or has taken in response to the COVID-19 pandemic; the severity and duration of the COVID-19 pandemic, including the effectiveness of vaccination efforts; the pace of recovery when the COVID-19 pandemic subsides and the heightened impact it has on many of the risks described herein; changes in real estate values; changes in interest rates; changes in the level and composition of deposits, loan demand, and the values of loan collateral, securities and interest sensitive assets and liabilities; changes in the securities markets generally or the price of our common stock specifically; developments in information technology affecting the financial industry; cyber threats, attacks or events; reliance on third parties for the provision of key services; further changes in accounting principles relating to loan loss recognition; uncertainty and disruption associated with the discontinued use of the London Inter-Bank Offered Rate; the costs of evaluating possible acquisitions and the risks inherent in integrating acquisitions; possible adverse rulings; judgements, settlements, and other outcomes of pending or future litigation; the effects of competition from other commercial banks, thrifts, mortgage banking firms, consumer finance companies, credit unions, securities brokerage firms, insurance companies, money market and other mutual funds and other financial institutions operating in our market area and elsewhere, including institutions operating regionally, nationally and internationally, together with such competitors offering banking products and services by mail, telephone, computer and the internet; the failure of assumptions underlying the establishment of reserves for possible credit losses, fair value for loans, other real estate owned, our expectations with respect to a proposed amendment to our articles of incorporation and those factors set forth under Item 1A. Risk-Factors of our Annual Report on Form 10-K for the year ended December 31, 2020, and other cautionary statements set forth elsewhere in this prospectus. Many of these factors are beyond our ability to predict or control, and actual results could differ materially from those indicated in or implied by the forward-looking statements due to these factors and others. In addition, as a result of these and other factors, our past financial performance should not be relied upon as an indication of future performance.
We believe the assumptions and expectations that underlie or are reflected in our forward-looking statements are reasonable, based on information available to us on the date hereof. However, given the described uncertainties and risks, we cannot guarantee our future performance or results of operations or whether our future performance will differ materially from the performance reflected in or implied by our forward-looking statements, and you should not place undue reliance on these forward-looking statements.
Any forward-looking statement speaks only as of the date hereof, and we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, and all written or oral forward-looking statements attributable to us are expressly qualified in their entirety by this section.
THE COMPANY
We are a financial holding company registered under the Bank Holding Company Act of 1956, as amended. We are headquartered in Arkansas and as of December 31, 2020, had, on a consolidated basis, total assets of approximately $22.4 billion, total net loans of approximately $12.9 billion, total deposits of approximately $17.0 billion and stockholders’ equity of approximately $3.0 billion. Through our subsidiaries, we provide banking and other financial products and services in markets located in Arkansas, Kansas, Missouri, Oklahoma, Tennessee and Texas.
Our business philosophy centers on building strong, deep customer relationships through excellent customer service and integrity in our operations. While we have grown in recent years into a regional financial institution, we continue to emphasize, where practicable, a community-based mindset focused on local associates responding to local banking needs and making business decisions in the markets they serve. Those efforts, though, are buttressed by experienced, centralized support functions in select, critical areas. As we focus on the communities in which we primarily operate, we provide a wide range of consumer and commercial loan and deposit products to individuals and businesses in our core markets. We also have developed through our experience and scale and through acquisitions specialized products and services that are provided in certain cases to customers beyond our core market area. Those products include credit cards, personal and corporate trust services, investments, insurance, agricultural finance lending, equipment lending, consumer finance and SBA lending.
We seek to build shareholder value by, among other things, (1) focusing on strong asset quality, (2) maintaining strong capital, (3) managing our liquidity position, (4) improving our operational efficiency, and (5) opportunistically growing our business, both organically and through mergers with and acquisitions of other financial institutions.
Our common stock is traded on the Nasdaq Global Select Market under the symbol “SFNC.” Our principal executive offices are located at 501 Main Street, Pine Bluff, Arkansas 71601, and our telephone number is (870) 541-1000. We also have corporate offices in Little Rock, Arkansas.
Additional information about us and our subsidiaries is included in documents incorporated by reference in this prospectus. See “Where You Can Find More Information.”
RISK FACTORS
Investing in securities issued by us involves certain risks. Before you invest in any securities issued by us, in addition to the other information included in, or incorporated by reference into, this prospectus, you should carefully consider the risk factors contained in Part I, Item 1A under the caption “Risk Factors” and elsewhere in our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference into this prospectus, as updated by our annual or quarterly reports for subsequent fiscal years or fiscal quarters that we file with the SEC and that are so incorporated. See “Where You Can Find More Information” for information about how to obtain a copy of these documents. You should also carefully consider the risks and other information that may be contained in, or incorporated by reference into, any prospectus supplement relating to specific offerings of securities.
USE OF PROCEEDS
We intend to use the net proceeds from the sales of the securities in the manner and for the purposes set forth in the applicable prospectus supplement, which may include general corporate purposes.
DESCRIPTION OF COMMON STOCK
We may issue, separately or together with, or upon conversion, exercise or exchange of other securities, shares of our common stock as set forth in the applicable prospectus supplement. The following section describes the material features and rights of our common stock. This summary does not purport to be exhaustive and is qualified in its entirety by reference to our Amended and Restated Articles of Incorporation, which we refer to as our Articles of Incorporation, and our By-Laws, each of which is incorporated by reference to the registration statement of which this prospectus is a part, and to applicable Arkansas law.
Authorized and Outstanding Shares
As of the date of this prospectus, we were authorized to issue 175,000,000 shares of our common stock. As of March 23, 2021, there were 108,346,073 shares of our common stock issued and outstanding. On March 23, 2021, approximately 492,388 shares of our common stock were issuable upon exercise of outstanding stock options and approximately 4,131,949 shares were reserved for future issuance under our stock compensation plans.
Voting and Other Rights
The holders of our common stock have one vote per share on all matters submitted to a vote of our shareholders. There are no cumulative voting rights for the election of directors. Holders of our common stock have no preemptive, subscription, redemption, sinking fund or conversion rights. In the event of a liquidation, dissolution or winding up of the Company, the holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any outstanding preferred stock.
Dividends
The holders of our common stock are entitled to receive ratably dividends declared by our board of directors out of funds legally available thereof. Our ability to pay dividends depends on the amount of dividends paid to us by our subsidiaries. The payment of dividends is subject to government regulation, in that regulatory authorities may prohibit banks and financial holding companies from paying dividends in a manner that would constitute an unsafe or unsound banking practice. In addition, a bank may not pay cash dividends if doing so would reduce the amount of its capital below that necessary to meet minimum regulatory capital requirements. State and federal laws also limit a bank’s ability to pay dividends. Accordingly, the dividend restrictions imposed on our subsidiaries by statute or regulation effectively may limit the amount of dividends we can pay.
Holders of our debt securities have priority to distributions and payment over holders of our common stock. Furthermore, the terms of our Series D Preferred Stock limit our ability to pay dividends on our common stock to the extent we have not paid required dividends on our Series D Preferred Stock.
The dividend rights of holders of our common stock could become subject to the dividend rights of holders of any outstanding preferred stock that we issue in the future.
Transfer Agent
The transfer agent and registrar for our common stock is Computershare, Inc.
Antitakeover Effects of Certain Provisions in our Articles of Incorporation
Our Articles of Incorporation contain certain provisions that could delay, discourage or prevent an attempted acquisition or change of control of the Company. Article ELEVENTH contains a restriction upon the ability of a shareholder owning more than 10% of our common stock to acquire any additional shares except through a cash tender offer at a price not less than the highest closing price of our common stock during the most recent 24 months, unless such shareholder is excepted from the application of Article ELEVENTH by our board of directors prior to becoming a 10% shareholder. Our board of directors intends to submit a proposal to our shareholders at our 2021 annual meeting to remove this restriction from Article ELEVENTH.
Further, Article ELEVENTH requires the approval of shareholders owning at least 80% of our common stock for any acquisition of the Company by merger or consolidation or by asset acquisition unless approved by the affirmative vote of 80% of the directors who were in office prior to the proponent of the acquisition acquiring 10% or more of our common stock.
Article THIRTEENTH of our Articles of Incorporation requires our board of directors to consider the following matters prior to making any recommendation concerning a proposed business combination in which we will not be the surviving corporation:
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the likely impact on us, our subsidiaries, shareholders and employees and the communities served by the Company;
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the timeliness of the proposed transaction considering the business climate and our strategic plans;
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the possibility of any legal defects or regulatory issues involved in the proposed transaction;
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the risk of non-consummation of the transaction due to lack of financing, regulatory issues or other identified risks;
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the current market price of our common stock and our consolidated assets;
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the book value of our common stock;
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the relationship of the offered price for our common stock to the board’s opinion of the current value of the Company in an independently negotiated transaction;
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the relationship of the offered price for our common stock to the board’s opinion of the future value of the Company as an independent entity; and
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such other factors as our board of directors may deem pertinent.
Article FOURTEENTH requires the affirmative vote of 80% of the shares entitled to vote to amend, repeal or modify any provision of our Articles of Incorporation unless such amendment, repeal or modification is approved by 80% of the directors who were in office prior to the proponent of any business combination acquiring 10% or more of our common stock.
Finally, our board of directors, without shareholder approval, has the authority under our Articles of Incorporation to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, preferred stock, while not intended as a defensive measure against takeovers, could be issued quickly and easily, which may adversely affect the rights of holders of common stock and could make it more difficult or time consuming for a third party to acquire a majority of our outstanding voting stock or otherwise effect a change of control. Within the limits described below under “Description of Preferred Stock,” our board of directors may issue preferred stock for capital raising transactions, acquisitions, joint ventures or other corporate purposes that has the effect of making an acquisition of the Company more difficult or costly.
DESCRIPTION OF PREFERRED STOCK
The following section describes the general terms of our preferred stock that we may issue. The specific terms of any series of preferred stock will be described in the prospectus supplement relating to that series of preferred stock. The terms of any series of preferred stock may differ from the terms described below. Certain provisions of our preferred stock described below and in any prospectus supplement are not complete. The summary does not purport to be exhaustive and is qualified in its entirety by reference to our Articles of Incorporation and our By-Laws, each of which is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and to applicable Arkansas law.
Authorized Shares
Our Articles of Incorporation permit our board of directors to authorize the issuance of up to 40,040,000 shares of preferred stock, par value $0.01 per share, in one or more series, without shareholder action. We have one series of preferred stock currently outstanding.
General
Our board of directors can fix the number of shares to be included in each such series, and the designation, powers, preferences and rights of the shares of each such series and any qualifications, limitations or restrictions thereon. Therefore, without shareholder approval, our board of directors can authorize the issuance of preferred stock with voting, dividend, liquidation, conversion and redemption and other rights that could dilute the voting power of the common stock and may assist management in impeding any unfriendly takeover or attempted change in control.
Our preferred stock has the terms described below unless otherwise provided in the prospectus supplement relating to a particular series of our preferred stock. You should read the prospectus supplement relating to the particular series of our preferred stock being offered for specific terms, including:
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the number of shares constituting that series and the distinctive designation of that series;
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the dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series;
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whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
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whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as our board of directors shall determine;
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whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or date upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
•
whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
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the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights of priority, if any, of payment of shares of that series; and
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any other relative rights, preferences and limitations of that series.
Rank
Any series of preferred stock could rank senior, equal or junior to our other capital stock, as may be described in the prospectus supplement, as long as our Articles of Incorporation so permit.
Dividends
Holders of each series of preferred stock will be entitled to receive dividends if so specified in the applicable designations when, as and if declared by our board of directors, from funds legally available for the payment of dividends. The rates and dates of payment of dividends for each series of preferred stock will be stated in the applicable prospectus supplement. Dividends will be payable to holders of record of preferred stock as they appear on our books on the record dates fixed by our board of directors. Dividends on any series of preferred stock may be cumulative or noncumulative, as set forth in the applicable prospectus supplement.
Voting Rights
Unless otherwise described in the applicable prospectus supplement, holders of our preferred stock will have no voting rights except as otherwise required by law or by our Articles of Incorporation.
Conversion or Exchange Rights
The prospectus supplement relating to any series of preferred stock that is convertible, exercisable or exchangeable will state the terms on which shares of that series are convertible into or exercisable or exchangeable for shares of common stock, another series of preferred stock or other securities of the Company.
Redemption
We may provide that a series of our preferred stock may be redeemable, in whole or in part, at our option. In addition, a series of preferred stock may be subject to mandatory redemption pursuant to a sinking fund or otherwise. The redemption provisions that may apply to a series of preferred stock, including the redemption dates and the redemption prices for that series, will be described in the prospectus supplement.
In the event of partial redemptions of preferred stock, whether by mandatory or optional redemption, our board of directors will determine the method for selecting the shares to be redeemed, which may be by lot or pro rata or by any other method determined to be equitable. On or after a redemption date, unless we default in the payment of the redemption price, dividends will cease to accrue on shares of preferred stock called for redemption. In addition, all rights of holders of the shares will terminate except for the right to receive the redemption price.
Unless otherwise specified in the applicable prospectus supplement for any series of preferred stock, if any dividends on any other series of preferred stock ranking equally as to payment of dividends and liquidation rights with such series of preferred stock are in arrears, no shares of any such series of preferred stock may be redeemed, whether by mandatory or optional redemption, unless all shares of preferred stock are redeemed, and we will not purchase any shares of such series of preferred stock. This requirement, however, will not prevent us from acquiring such shares pursuant to a purchase or exchange offer made on the same terms to holders of all such shares outstanding.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, holders of each series of preferred stock will be entitled to receive distributions upon liquidation in the amount described in the applicable prospectus supplement, plus an amount equal to any accrued and unpaid dividends. These distributions will be made before any distribution is made on any securities ranking junior to our preferred stock with respect to liquidation, including our common stock. If the liquidation amounts payable relating to our preferred stock of any series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of our preferred stock of that series and the other securities will share in any distribution of our available assets on a ratable basis in proportion to the full liquidation preferences of each security. Unless the applicable prospectus supplement states otherwise, holders of our preferred stock will not be entitled to any other amounts from us after they have received their full liquidation
preference. Pursuant to our Articles of Incorporation, the aggregate liquidation preference of all shares of preferred stock will not exceed $80.0 million.
Transfer Agent
The transfer agent and registrar for our preferred stock will be Computershare, Inc.
DESCRIPTION OF DEBT SECURITIES
The complete terms of the debt securities will be contained in the indenture and supplemental indenture applicable to the debt securities. These documents have been or will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the indenture and applicable supplemental indenture. You should also read the prospectus supplement, which will contain additional information and which may update or change some of the information below.
We may issue, separately or together with, or upon conversion, exercise or exchange of other securities, debt securities, including debentures, notes, bonds and other evidences of indebtedness as set forth in the applicable prospectus supplement. The debt securities may be either secured or unsecured and will either be senior debt securities or subordinated debt securities. Senior debt securities will be issued under a senior indenture that we will enter into with Wilmington Trust, National Association, as trustee, and subordinated debt securities will be issued under the Subordinated Indenture, dated as of March 26, 2018, between us and Wilmington Trust, National Association, as trustee. We refer to the senior indenture and the subordinated indenture together as the indentures. This prospectus, together with the applicable prospectus supplement, will describe the terms of each series of debt securities that we may offer from time to time.
The following summary of the material provisions of the indentures and the debt securities does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of the applicable indenture and certificates evidencing the applicable debt securities. The specific terms of the applicable indenture and debt securities will be described in the applicable prospectus supplement. If any particular terms of the indenture or debt securities described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by those described in the applicable prospectus supplement.
Capitalized terms used in this section but not defined have the meanings given to those terms in the accompanying prospectus or, if not defined in the accompanying prospectus, in the applicable indenture.
In this section “Description of Debt Securities,” “we,” “our,” “us” and the “Company” refer only to Simmons First National Corporation and not to any of its subsidiaries.
General
Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We are not limited as to the amount of debt securities that we may issue under the indentures. Unless otherwise provided in a prospectus supplement, a series of debt securities may be reopened to issue additional debt securities of such series. The subordinated debt securities will be subordinated as described below under the heading “Subordinated Debt.”
The prospectus supplement relating to a particular series of debt securities will set forth the material terms of the debt securities being offered, including:
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the title of the debt securities and whether they are senior debt securities or subordinated debt securities;
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the offering price (which may be expressed as a percentage of the aggregate principal amount) of the debt securities;
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the aggregate principal amount of such series which may be authenticated and delivered under the indentures;
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the maturity date or dates;
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if applicable, whether the debt securities shall be subject to the defeasance provisions described below under “Satisfaction and Discharge” or such other defeasance provisions specified in the applicable prospectus supplement for the debt securities;
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any conversion or exchange provisions;
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any deletions of, or changes or additions to, the events of default, acceleration provisions or covenants;
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the date of the debt securities if other than the date of original issuance;
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the person who shall be entitled to receive interest, if other than the record holder on the record date;
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the date or dates on which the principal of the debt securities of such series is payable;
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the rate or rates, and if applicable the method used to determine the rate, at which the debt securities of such series shall bear interest, if any, the date or dates from which such interest shall accrue, the date or dates on which such interest shall be payable and the record date or dates for the interest payable on any debt securities on any interest payment date;
•
the place or places where payments of principal and interest may be made;
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the obligation, if any, of the Company to redeem or purchase the debt securities of such series, at the option of the Company or at the option of a holder thereof, pursuant to any sinking fund or other redemption provisions and the period or periods within which, the price or prices at which and the terms and conditions upon which the debt securities of the series may be so redeemed or purchased, in whole or in part;
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if issued other than in minimum denominations of $1,000 or any multiple of $1,000, the denominations in which the debt securities shall be issuable;
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the portion of the principal amount that will be payable upon acceleration of maturity, if other than the entire principal amount;
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if other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable, whether we or a holder may elect payment to be made in a different currency and the designation of the original currency determination agent;
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if the amount of payments of principal of (and premium, if any, on) or any interest on the debt securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
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whether the debt securities will be issuable in the form of a global security;
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any interest rate calculation agents, paying agents, authenticating agents, security registrars or other agents for the debt securities, if other than the trustee;
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whether and under what circumstances we will pay Additional Amounts in respect of any series of debt securities and whether we have the option to redeem such debt securities rather than pay such Additional Amounts;
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any provisions relating to the extension of maturity of, or the renewal of, the debt securities of such series, or the conversion of the debt securities of such series into other securities of the Company;
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any provisions relating to the purchase or redemption of all or any portion of a tranche or series of debt securities, including the period of notice required to redeem those debt securities;
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the terms and conditions, if any, pursuant to which the debt securities are secured;
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any subordination provisions applicable to the subordinated debt securities if different from those described below under “Subordinated Debt”; and
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any other specific terms of such debt securities.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies, or if the principal of or premium, if any, or interest on any series of debt securities is payable in a foreign currency or currencies, we will include in the applicable prospectus supplement information on the restrictions, elections, material United States federal income tax considerations, specific terms and other information with respect to that issue of debt securities and the foreign currency or currencies.
Unless otherwise specified in the prospectus supplement, the debt securities will be registered debt securities. Debt securities may be sold at a substantial discount below their stated principal amount, bearing
no interest or interest at a rate which at the time of issuance is below market rates. The material United States federal income tax considerations applicable to debt securities sold at a discount will be described in the applicable prospectus supplement.
Senior Debt
Except as otherwise provided in a supplemental indenture or prospectus supplement, senior debt securities will be unsecured and will rank equally with all other unsecured and unsubordinated debt of the Company, and will rank senior in right of payment to any subordinated debt.
Subordinated Debt
Except as otherwise provided in a supplemental indenture or prospectus supplement, subordinated debt securities will be unsecured and will be subordinated in right of payment, to the prior payment in full of all of our “senior indebtedness,” as more fully described in the applicable prospectus supplement. Notwithstanding the foregoing, if a deposit is made in accordance with the terms of the indenture with respect to any debt securities (and provided all other conditions set out in the indenture shall have been satisfied with respect to such debt securities), then, when the 90th day after such deposit has ended, no money obligations so deposited, and no proceeds thereon, will be subject to any rights of holders of Senior Indebtedness.
Under the subordinated debt indenture, “senior indebtedness” means, without duplication, the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization, whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of the following indebtedness, whether any such indebtedness exists as of the date of the indenture or is created, incurred or assumed after such date:
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all obligations for borrowed money;
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all obligations evidenced by debentures, debt securities or other similar instruments;
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all obligations in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto);
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all obligations to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business;
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all indebtedness of others guaranteed by us or any of our subsidiaries or for which we or any of our subsidiaries is legally responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others); and
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indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by the Company but excluding any obligations of the Company which are required (as opposed to elected to be treated) as capitalized leases under GAAP.
Methods of Receiving Payments on the Notes
Unless otherwise indicated in a prospectus supplement, the debt securities will be payable as to principal, redemption premium, if any, and interest at the office or agency of the paying agent (which may be us), or, at our option, payment of interest may be made by check mailed to the holders of the debt securities at their addresses set forth in the register of holders.
Events of Default; Waiver
Unless we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, an “event of default,” when used in the indentures, means any of the following:
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our default in the payment of the principal, premium, if any, or any payment required by a sinking or analogous fund with respect to any of the debt securities when due, either at maturity, upon redemption, by declaration or otherwise;
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our default in the payment of any interest on the debt securities when due, and continuance of such default for a period of 90 days;
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our failure to observe or perform any other covenant or agreement in the debt securities or the applicable indenture and the continuance of such default or breach for a period of 90 days after our receipt of notice from the trustee or the holders of at least 25% in aggregate principal amount of the debt securities of that series specifying such failure and requiring it to be remedied;
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a court having jurisdiction enters a decree or order for relief in respect of us or a Material Subsidiary in an involuntary case or preceding under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of us or a Material Subsidiary or for any substantial part of our or its respective property, or ordering the winding-up or liquidation of our affairs shall have been entered and remained unstayed and in effect for a period of 60 consecutive days;
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we or a Material Subsidiary commence a voluntary case under any applicable bankruptcy, insolvency or other similar law, or consent to the entry of a decree or order for relief in an involuntary case or proceeding under any such law, or the consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of us or a Material Subsidiary or of any substantial part of our or its respective property, or the making by us or a Material Subsidiary of a general assignment for the benefit of creditors; or
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any other event of default provided with respect to a particular series of debt securities, as described in the prospectus supplement with respect to the offering of such series.
A Material Subsidiary means Simmons Bank or any successor thereof or any of our subsidiaries that is a depository institution and that has consolidated assets equal to 80% or more of our consolidated assets.
If an event of default occurs and continues, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities by notice to us (with a copy to the trustee, if given by holders) may declare the principal to be immediately due and payable with respect to all the debt securities of that series, in the case of an event of default described in the first, second, third or sixth bullet above, or all of the debt securities issued under the indentures, in the case of an event of default described in the fourth or fifth bullet above.
The indentures also provide that the holders of a majority in principal amount of the debt securities may waive any existing default with respect to the debt securities and its consequences, except a default in the payment of the principal of, premium, if any, and interest on the debt securities or a bankruptcy or insolvency-related default, if we have cured the event of default and deposited with the trustee a sum sufficient to pay the principal, premium, if any, and matured installments of interest which shall have become due otherwise than by acceleration.
The holders of a majority in principal amount of the debt securities of each series may direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee or exercising any trust or power conferred on the trustee. However, the trustee may refuse to follow any direction that conflicts with law or the indentures or that the trustee determines may be unjustly prejudicial to the holders of the debt securities not joining in the direction or that may involve the trustee in personal liability. In addition, the trustee may take any other action it deems proper consistent with any such direction received from the holders of the debt securities.
The trustee shall be under no obligation to exercise any of the rights or powers vested in it by the indentures at the request, order or direction of any of the holders pursuant to the indentures, unless such holders shall have offered to the trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no holder of a note 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 other remedy under the indenture unless:
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such holder has previously given the trustee written notice of a continuing event of default;
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holders of at least 25% in aggregate principal amount of the outstanding debt securities have made a written request to the trustee to pursue the remedy;
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such holders provide to the trustee reasonable indemnity acceptable to the trustee against the costs, expenses and liabilities to be incurred with such request;
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the trustee has failed to institute a proceeding within 60 days after its receipt of the notice, request and offer of indemnity; and
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the holders of a majority in aggregate principal amount of the outstanding debt securities do not give the trustee a direction inconsistent with the request within such 60-day period.
Each indenture requires the applicable trustee to notify the holders of a series regarding the existence of any default, unless the default has been cured or waived. In addition, in the case of a default in payment of principal of or interest on any note, or the payment of any sinking or purchase fund installment, the trustee may withhold notice of a default if and so long as the trustee in good faith determines that withholding the notice is in the interests of the holders of the debt securities. Furthermore, the trustee shall not provide notice of default to the holders of debt securities following the third event of default described in this section unless at least 30 days after the occurrence thereof. For purposes of these requirements, a “default” means any event which is, or after notice or lapse of time or both would become, an event of default under the indentures with respect to the debt securities of such series.
We are required to deliver to the trustee, within 120 days after the end of our fiscal year, commencing in the year during which the first series of debt securities is issued under an indenture, a written statement from our applicable officers regarding whether we have fulfilled all of our obligations under the indenture throughout the year and specifying any known default and its status.
Merger, Consolidation, Sale, Lease or Conveyance
Unless otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, we will not merge into or consolidate with any other corporation, or sell or convey all or substantially all of our assets to any person, firm, or corporation unless:
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we are either the continuing corporation or the successor corporation is a corporation organized and existing under the laws of the United States or a state thereof or the District of Columbia and expressly assumes the due and punctual payment of the principal, premium, if any, and interest on all the debt securities according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the indenture to be performed by us by supplemental indenture, executed and delivered to the trustee by such successor corporation;
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neither we nor such successor corporation, immediately after giving effect to such merger, consolidation, sale or conveyance, will be in default in the performance of any covenant or condition under the applicable indenture; and
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we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that the transaction complies with the terms of the applicable indenture and that all conditions precedent in such indenture provided for relating to such transaction have been complied with.
In the case of any such consolidation or merger, sale or conveyance and upon any such assumption by the successor corporation, the successor corporation shall succeed to, and be substituted for, us under the applicable indenture with the same effect as if it had been an original party to such indenture. As a result, we will be released from all our liabilities and obligations under such indenture and under the debt securities issued thereunder.
Although there is a limited body of case law interpreting the phrase “substantially all” and similar phrases, there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve “substantially all” the property or assets of a person.
Certain Covenants
The applicable prospectus supplement will describe any restrictive covenants applicable to any debt securities we offer for sale.
Modification of the Indenture
Unless we indicate otherwise in a prospectus supplement and except as set forth below, modification and amendment of an indenture, or entry into a supplemental indenture applicable to the debt securities may be made only when authorized by the board of directors and with the consent of the holders of not less than a majority in principal amount of the debt securities affected by such supplemental indenture, voting together as a single class.
Notwithstanding the foregoing, no modification or amendment of an indenture as applicable to any series of debt securities may:
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extend the fixed maturity of any debt security, or reduce the principal amount thereof or premium, if any, or reduce the rate or extend the time of payment of interest thereon, without the consent of the holder of each debt security so affected;
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reduce the percentage in principal amount of outstanding debt securities that is required for any supplemental indenture without the consent of the holders of all debt securities then outstanding;
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modify the subordination provision in a manner adverse to the holders of any debt security; or
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modify such provisions with respect to modification and waiver.
In addition, we and the trustee may modify or amend the indentures as applicable to the debt securities, without the consent of any holder of the debt securities, for any of the following purposes:
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to evidence the succession of another corporation to the Company and provide for the successor’s assumption of the covenants, agreements and obligations under the indentures and the debt securities issued thereunder;
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to add further covenants, restrictions, conditions or provisions as our board of directors considers to be for the protection of the holders of the debt securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the remedies provided under the applicable indenture, with such period of grace and subject to such conditions as such supplemental indenture may provide;
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to add or change any of the provisions of the indenture to provide that the debt securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of debt securities in uncertificated form; provided, that no such action shall adversely affect the interests of the holders of the debt securities or any related coupons in any material respect;
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to modify, eliminate or add provisions of the indenture in order to effect the qualification of the applicable indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and to add such other provisions as may be expressly permitted by the Trust Indenture Act, excluding Section 316(a)(2) thereof;
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to modify, eliminate or add to any provisions of the indenture; provided that any such change or elimination becomes effective only when there are no outstanding debt securities or does not apply to any outstanding debt security;
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(i) to cure any ambiguity or to correct or supplement any provision in the indenture or any supplemental indenture which may be defective or inconsistent with any other provision, (ii) to convey, transfer, assign, mortgage or pledge any property to or with the trustee or (iii) to make such other provisions in regard to matters or questions arising under the indenture; provided, that no such provision, shall adversely affect in any material respect the interests of the holders of the debt securities or any related coupons, including provisions necessary or desirable to provide for or facilitate the administration of the trusts;
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to secure any series of debt securities; and
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to evidence and provide for the acceptance and appointment by a successor trustee with respect to the debt securities of one or more series and to add or change any provisions of the indenture as necessary to provide for or facilitate the administration of the trusts by more than one trustee.
The trustee shall not be obligated to enter into any amendment or supplemental indenture, which adversely affects the trustee’s own rights, duties or immunities under the applicable indenture or otherwise.
Subject to the requirements for the holders to waive a default and to pursue a remedy with respect to the applicable indenture or the debt securities and the rights of any holder of a debt security to receive payment of principal of, premium, if any, on and interest on such note, holders of a majority in aggregate principal amount of the debt securities voting as a single class may waive compliance in a particular instance by us with any provision of the applicable indenture or the debt security and rescind and annual such declaration and its consequences, except as otherwise stated above, but no waiver or rescission and annulment will extend to or affect any subsequent default or impair any other right.
Outstanding Notes; Determinations of Holders’ Actions
Debt securities outstanding at any time are the debt securities authenticated and delivered by the trustee except for those cancelled by the trustee or delivered to the trustee for cancellation, those debt securities, or portions thereof, for which we have deposited in trust with the trustee or any paying agent, a sufficient amount of money for the payment or redemption thereof, those debt securities that have been defeased under the indenture, and those debt securities that have been exchanged for other debt securities issued under the indenture or that have been mutilated, destroyed, lost or stolen and replaced by the trustee. A debt security does not cease to be outstanding because we or an affiliate of us holds the debt security; provided, that in determining whether the holders of the requisite aggregate principal amount of debt securities have given or concurred in any request, demand, authorization, notice, direction, consent, or waiver, debt securities owned by us any other obligor of the debt securities, or any other person directly or indirectly controlling or controlled by or under direct or indirect common control with us or any other obligor on the debt securities, will be disregarded and deemed not to be outstanding for the purpose of any such determination, except for certain instances where the debt securities have been pledged in good faith.
The trustee may make reasonable rules for action by or at a meeting of holders of the debt securities. The registrar or paying agent may make reasonable rules and set reasonable requirements for its functions.
Satisfaction and Discharge
Each indenture may be discharged and cease to be of further effect as to the applicable debt securities, when:
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either:
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all debt securities of any series that have been authenticated and all coupons, if any, appertaining thereto have been delivered to the trustee for cancellation, except (a) coupons on Bearer Securities that meet certain conditions, (b) debt securities and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in the indenture, (c) coupons relating to debt securities called for redemption and maturing after the relevant redemption date, whose surrender has been waived, and (d) debt securities and coupons for which payment has been deposited in trust or segregated and held in trust by us and thereafter repaid to us or discharged from such trust; or
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all debt securities and certain coupons discussed above that have not been delivered to the trustee for cancellation (a) have become due and payable, (b) are by their terms due and payable within one year, or (c) are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption, and in the case of clauses (a) and (c) in the preceding bullet, we have deposited or caused to be deposited with the trustee as trust funds the entire amount (other than moneys repaid by the trustee or any paying agent to us under the terms of the indenture) sufficient to pay at maturity or upon redemption all debt securities of such series and coupons not delivered to the trustee for cancellation, including principal (and premium, if any) and any interest due or to become due to such date of maturity or date of redemption;
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we have paid or caused to be paid all other sums payable by us under the applicable indenture with respect to the debt securities;
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upon demand of and at our cost and expense, the trustee will execute such instruments as reasonably requested by us acknowledging the satisfaction and discharge of the applicable indenture with respect to the debt securities; and
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we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that the conditions precedent to the satisfaction and discharge of the debt securities have been complied with.
Legal Defeasance and Covenant Defeasance
Legal Defeasance
Under the terms of the indentures and unless as otherwise provided in a supplemental indenture, we will be deemed to have paid and will be discharged from any and all obligations in respect of the debt securities on the 123rd day (or later as described below) after we have made the deposit referred to below, and the provisions of the applicable indenture will cease to be applicable with respect to the debt securities (except for, among other matters, certain rights of the holders to receive payments of principal, premium and interest on such debt securities from the trust fund, and our obligations to register the transfer of or exchange of the debt securities, prepare temporary debt securities, to replace stolen, lost or mutilated debt securities, to maintain paying agencies and to hold funds for payment in trust, and rights, powers, trusts, duties, and immunities with respect to the trustee) if:
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we have irrevocably deposited or caused to be deposited with the trustee, in trust, money in an amount and/or non-callable or non-redeemable government securities that will provide funds in amount sufficient, in the opinion of a nationally recognized public accounting firm expressed in a written certification delivered to the trustee, to pay the principal of, premium, if any, and accrued interest on the debt securities at the time such payments are due or on the applicable redemption date in accordance with the terms of the applicable indenture and any mandatory sinking fund payments or analogous payments applicable to such debt securities;
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no default or event that after notice or lapse of time, or both, would become a default with respect to such debt securities, will have occurred and be continuing on the date of such deposit, or insofar as events of default due to certain events of bankruptcy, insolvency or reorganization in respect of us are concerned, during the period ending on the 123rd day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the company with respect to such deposit;
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such defeasance or covenant defeasance does not (i) cause the trustee for the debt securities to have a conflicting interest under the terms of the indenture or the Trust Indenture Act or (ii) result in the trust arising from such deposit to constitute, unless it is qualified, a regulated investment company under the Investment Company Act of 1940, as amended;
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such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, the indenture or any other agreement or instrument to which we are a party or by which we are bound;
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such defeasance or covenant defeasance does not cause any debt securities of such series then listed on any registered national securities exchange under the Exchange Act to be delisted;
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we have delivered to the trustee an opinion of counsel stating that (i) we have received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of the indenture there has been a change in the applicable federal income tax law, to the effect that, and based thereon, holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such defeasance had not occurred;
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such defeasance is effected in compliance with any terms, conditions or limitations which may be imposed on the Company in connection with a supplemental indenture or board resolutions establishing such series of debt securities; and
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we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that, all conditions precedent and subsequent provided for in the indenture relating to the defeasance have been complied with.
Covenant Defeasance
Under the terms of the indentures and unless as otherwise provided in a supplemental indenture, we will not need to comply with certain restrictive covenants, and the provisions of the applicable indenture will cease to be applicable with respect to an event of default under the debt securities other than an event of default due to our failure to pay the principal of or interest on the debt securities when due, upon:
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the satisfaction of the conditions described in “— Legal Defeasance,” other than with respect to the sixth bullet point; and
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our delivery to the trustee of an opinion of counsel to the effect that the holders of the debt securities 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 amount and in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
If we exercise our option to omit compliance with certain provisions of the applicable indenture as described in the immediately preceding paragraph and the debt securities are declared due and payable because of the occurrence of an event of default that remains applicable, the amount of money and/or non-callable government securities on deposit with the trustee may not be sufficient to pay amounts due on the debt securities at the time of acceleration resulting from such event of default. In such event, we will remain liable for such payments.
Limitation on Individual Liability
No incorporator or past, present or future shareholder, officer or director of us or any successor corporation, as such, will have any liability for any obligations of us under the debt securities or the indentures or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of a debt security, by accepting a note waives and releases such liability. The waiver and release are part of the consideration for the issuance of the debt securities. Such waiver may not be effective to waive liabilities under the federal securities laws.
Trustee
The initial trustee for the senior indenture will be Wilmington Trust, National Association, and the trustee for the subordinated indenture is Wilmington Trust, National Association.
At all times, the trustee must be a corporation organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia, with authority to exercise corporate trust powers, be subject to the supervision or examination by federal, state, territorial or District of Columbia authority, have at all times a combined capital and surplus of not less than $50,000,000 and not be the Company or any person directly or indirectly controlled or controlled by or under common control with the Company.
If the trustee acquires any conflicting interest, as defined in the Trust Indenture Act, with respect to the debt securities, within 90 days after the trustee has or acquired a conflicting interest, which has not been cured or waived, the trustee would generally be required by the Trust Indenture Act to eliminate that conflicting interest or resign as trustee with respect to the debt securities issued under the applicable indenture. If the trustee resigns, we are required to promptly appoint a successor trustee with respect to the affected securities. The trustee and/or certain of its affiliates may provide banking, investment and other services to us.
Notices
Any notices required to be given to the holders of the debt securities will be given by mail to the addresses of the holders in the security register.
Governing Law
The indentures and the debt securities are governed by, and will be construed in accordance with, the laws of the State of New York. The indentures will be subject to the provisions of the Trust Indenture Act that are required to be part of the indentures and shall, to the extent applicable, be governed by such provisions.
Book-Entry Delivery and Settlement
Global Notes
We will issue any debt securities in the form of one or more global notes in definitive, fully registered, book-entry form. The global notes will be deposited with or on behalf of DTC, and registered in the name of Cede & Co., as nominee of DTC. Beneficial interests in the global notes will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct and indirect participants in DTC. Investors may hold interests in the global notes through DTC.
DTC has advised us that:
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DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered under Section 17A of the Exchange Act.
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DTC holds securities that its participants deposit with DTC and facilitates the settlement among 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.
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Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations, some of whom, and/or their representatives, own DTC.
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DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or “DTCC.” DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries.
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Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly.
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The rules applicable to DTC and its direct and indirect participants are on file with the SEC.
We have provided the description of the operations and procedures of DTC in this prospectus solely as a matter of convenience. These operations and procedures are solely within the control of those organizations and are subject to change by them from time to time. None of us, any underwriters nor any trustee takes any responsibility for these operations or procedures, and you are urged to contact DTC or their participants directly to discuss these matters.
We expect that under procedures established by DTC:
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upon deposit of the global notes with DTC or its custodian, DTC will credit on its internal system the accounts of direct participants designated by any underwriters with portions of the principal amounts of the global notes; and
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ownership of the debt securities will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC or its nominee, with respect to interests of direct participants, and the records of direct and indirect participants, with respect to interests of persons other than participants.
The laws of some jurisdictions may require that purchasers of securities take physical delivery of those securities in definitive form. Accordingly, the ability to transfer interests in the debt securities represented by a global note to those persons may be limited. In addition, because DTC can act only on behalf of its
participants, who in turn act on behalf of persons who hold interests through participants, the ability of a person having an interest in debt securities represented by a global note to pledge or transfer those interests to persons or entities that do not participate in DTC’s system, or otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest.
So long as DTC or its nominee is the registered owner of a global note, DTC or that nominee will be considered the sole owner or holder of the debt securities represented by that global note for all purposes under the indenture and under the debt securities. Except as provided below, owners of beneficial interests in a global note will not be entitled to have debt securities represented by that global note registered in their names, will not receive or be entitled to receive physical delivery of certificated notes and will not be considered the owners or holders thereof under the applicable indenture or under the debt securities for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee. Accordingly, each holder owning a beneficial interest in a global note must rely on the procedures of DTC and, if that holder is not a direct or indirect participant, on the procedures of the participant through which that holder owns its interest, to exercise any rights of a holder of debt securities under the applicable indenture or a global note.
Neither we nor any trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of debt securities by DTC, or for maintaining, supervising or reviewing any records of those organizations relating to the debt securities.
Payments on the debt securities represented by the global notes will be made to DTC or its nominee, as the case may be, as the registered owner thereof. We expect that DTC or its nominee, upon receipt of any payment on the debt securities represented by a global note, will credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the global note as shown in the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in the global note held through such participants will be governed by standing instructions and customary practice as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. The participants will be responsible for those payments.
Settlement Procedures
Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds.
Certificated Notes
Individual certificates in respect of any debt securities will not be issued in exchange for the global notes, except in very limited circumstances. We will issue or cause to be issued certificated notes to each person that DTC identifies as the beneficial owner of the debt securities represented by a global note upon surrender by DTC of the global note if:
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DTC notifies us that it is no longer willing or able to act as a depositary for such global note or ceases to be a clearing agency registered under the Exchange Act, and we have not appointed a successor depositary within 90 days of that notice or becoming aware that DTC is no longer so registered;
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an event of default has occurred and is continuing, and DTC requests the issuance of certificated notes; or
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subject to DTC’s procedures, we determine not to have the debt securities of such series represented by a global note.
Neither we nor any trustee will be liable for any delay by DTC, its nominee or any direct or indirect participant in identifying the beneficial owners of the debt securities. We and any trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the certificated notes to be issued.
DESCRIPTION OF DEPOSITARY SHARES
We may elect to offer fractional interests in shares of our preferred stock, in which case we will issue receipts for depositary shares and each of these depositary shares will represent a fraction of a share of the applicable series of our preferred stock, as set forth in the applicable prospectus supplement. The following summary of the terms of the depositary shares does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the terms of the depositary shares and our preferred stock, as well as the form of the deposit agreement, our Articles of Incorporation and the Articles of Amendment relating to the applicable series of our preferred stock that will be filed with the SEC. Therefore, you should carefully consider the actual provisions of these documents.
General
Each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of our preferred stock underlying that depositary share, to all rights and preferences of our preferred stock underlying that depositary share. These rights may include dividend, voting, redemption and liquidation rights.
The shares of our preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary, under a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary shares. The name and address of the principal executive office of the depositary will be included in the prospectus supplement relating to the issue.
The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
Dividends and Other Distributions
The depositary will distribute cash dividends or other cash distributions, if any, received in respect of the series of our preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant record date. The relevant record date for depositary shares will be the same date as the record date for our preferred stock.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary, with our approval, may adopt another method for the distribution, including selling the property and distributing the net proceeds to the holders.
Liquidation Preference
If a series of our preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of our preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If a series of our preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of our preferred stock held by the depositary. Whenever we redeem any of our preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing our preferred stock so redeemed. The depositary will mail the notice of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and no fewer than 20 nor more than 60 days, unless otherwise provided in the applicable prospectus supplement, prior to the date fixed for redemption of our preferred stock.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption.
Voting
Upon receipt of notice of any meeting at which the holders of our preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts underlying our preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of our preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same date as the record date for our preferred stock. The depositary will try, as far as practicable, to vote our preferred stock underlying the depositary shares in accordance with these instructions. We will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to vote our preferred stock in accordance with these instructions. The depositary will not vote our preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts.
Withdrawal of Preferred Stock
Owners of depositary shares will be entitled to receive upon surrender of depositary receipts at the principal office of the depositary and payment of any unpaid amount due to the depositary, the number of whole shares of our preferred stock underlying their depositary shares.
Partial shares of our preferred stock will not be issued. Holders of our preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depositary receipts evidencing depositary shares for our preferred stock.
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 by agreement between the depositary and us. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been approved by the holders of at least a majority of the outstanding depositary shares. The deposit agreement may be terminated by the depositary or us only if:
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all outstanding depositary shares have been redeemed; or
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there has been a final distribution of our preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangement. We will also pay charges of the depositary in connection with:
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the initial deposit of our preferred stock;
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the initial issuance of the depositary shares;
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any redemption of our preferred stock; and
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all withdrawals of our preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified charges as provided in the deposit agreement for their accounts. If these charges have not been paid, the depositary may:
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refuse to transfer depositary shares;
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withhold dividends and distributions; and
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sell the depositary shares evidenced by the depositary receipt.
Miscellaneous
The depositary will forward to the holders of depositary receipts all reports and communications we deliver to the depositary that we are required to furnish to the holders of our preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of our preferred stock.
Neither we nor the depositary will be liable if either we or the depositary are prevented or delayed by law or any circumstance beyond the control of either the depositary or us in performing our respective obligations under the deposit agreement. Our obligations and the depositary’s obligations will be limited to the performance in good faith of our or the depositary’s respective duties under the deposit agreement. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or our preferred stock unless satisfactory indemnity is furnished. The depositary and we may rely on:
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written advice of counsel or accountants;
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information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information; and
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documents believed to be genuine and to have been signed or presented by the proper party or parties.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering a notice to us. We may remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or removal. The successor depositary must be a bank and trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF WARRANTS
General
We may issue warrants in one or more series to purchase common stock, preferred stock, or any combination of these securities. Warrants may be issued independently or together with any underlying securities and may be attached to or separate from the underlying securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any obligation or relationship of agency for or on behalf of holders or beneficial owners of warrants. The following sets forth some of the general terms and provisions of the warrants. Further terms of the warrants and the applicable warrant agreement will be stated in the applicable prospectus supplement. The following description and any description of the warrants in a prospectus supplement are not complete and are subject to and qualified in its entirety by reference to the terms and provisions of the warrant agreement, which we will file with the SEC in connection with an issuance of any warrants.
The applicable prospectus supplement will describe the terms of any warrants, including the following, as may be applicable:
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the title of the warrants;
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the total number of warrants to be issued;
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the consideration for which we will issue the warrants, including the applicable currency or currencies;
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anti-dilution provisions to adjust the number of shares of our common stock or other securities to be delivered upon exercise of the warrants;
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the designation and terms of the underlying securities purchasable upon exercise of the warrants;
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the price at which and the currency or currencies in which investors may purchase the underlying securities purchasable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the procedures and conditions relating to the exercise of the warrants;
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whether the warrants will be in registered or bearer form;
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information with respect to book-entry registration and transfer procedures, if any;
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the minimum or maximum amount of warrants which may be exercised at any one time;
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the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security;
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the date on and after which the warrants and securities issued with the warrants will be separately transferable;
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a discussion of material United States federal income tax considerations;
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the identity of the warrant agent; and
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange, transfer and exercise of the warrants.
Warrant certificates may be exchanged for new warrant certificates of different denominations, and warrants may be exercised at the warrant agent’s corporate trust office or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their warrants, holders of warrants exercisable for shares of our common stock or preferred stock will not have any rights of holders of our common stock or preferred stock purchasable upon such exercise, including any rights to vote such shares or to receive any distributions or dividends thereon.
Exercise of Warrants
A warrant will entitle the holder to purchase for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable prospectus supplement. Warrants
may be exercised at any time prior to the close of business on the expiration date and in accordance with the procedures set forth in the applicable prospectus supplement. Upon and after the close of business on the expiration date, unexercised warrants will be void and have no further force, effect or value.
Enforceability of Rights
The holders of warrants, without the consent of the warrant agent, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding against us to enforce their rights to exercise and receive the securities purchasable upon exercise of their warrants.
DESCRIPTION OF PURCHASE CONTRACTS AND PURCHASE UNITS
We may issue purchase contracts for the purchase or sale of our common stock, preferred stock or debt securities issued by us or by third parties as specified in the applicable prospectus supplement. Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase on specified dates, such securities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the securities otherwise deliverable, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract. The price per security and the number of securities may be fixed at the time the purchase contracts are entered into or may be determined by reference to a specific formula set forth in the applicable purchase contracts.
The purchase contracts may be issued separately or as part of units consisting of a purchase contract and debt securities or debt obligations of third parties, including U.S. treasury securities, or any other securities described in the applicable prospectus supplement or any combination of the foregoing, securing the holders’ obligations to purchase the securities under the purchase contracts, which we refer to herein as “purchase units.” The purchase contracts may require holders to secure their obligations under the purchase contracts in a specified manner. The purchase contracts also may require us to make periodic payments to the holders of the purchase contracts or the purchase units, as the case may be, or vice versa, and those payments may be unsecured or pre-funded on some basis.
The prospectus supplement relating to any offering of purchase contracts or purchase units will contain the specific terms of the purchase contracts or purchase units. These terms may include, without limitation, the following:
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts or purchase units;
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a discussion of the material U.S. federal income tax considerations applicable to the purchase contracts or purchase units;
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whether the purchase contracts or purchase units will be issued in fully registered or global form; and
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any other terms of the purchase contracts or purchase units and any securities subject to such purchase contracts.
The description in the applicable prospectus supplement of any purchase contracts and purchase units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable purchase contract or unit agreement, which will be filed with the SEC in connection with any offering of such securities.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our common stock, preferred stock or debt securities. These subscription rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the shareholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The applicable prospectus supplement will describe the specific terms of any offering of subscription rights for which this prospectus is being delivered, including the following:
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the price, if any, for the subscription rights;
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the exercise price payable for each share of our common stock or preferred stock or for debt securities upon the exercise of the subscription rights;
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the number of subscription rights issued to each shareholder;
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the number and terms of each share of our common stock or preferred stock or for debt securities which may be purchased per each subscription right;
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the extent to which the subscription rights are transferable;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the subscription rights or the exercise price of the subscription rights;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights.
The description in the applicable prospectus supplement of any subscription rights we offer will not necessarily be complete and is subject to, and will be qualified in its entirety by reference to, the applicable subscription rights agreement and subscription rights certificate, which will be filed with the SEC in connection with any offering of subscription rights.
DESCRIPTION OF UNITS
We may issue units comprised of any combination of two or more of the other securities described in this prospectus and as specified in the applicable prospectus supplement. Each unit will be issued so that the holder of the unit is also the holder, with rights and obligations of a holder, of each security included in the unit. The units may be issued under unit agreements to be entered into between us and a unit agent.
The applicable prospectus supplement will specify the terms of the units, including:
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the designation and terms of the units and of any of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units;
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a description of the provisions for the payment, settlement, transfer or exchange of the units;
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a discussion of material U.S. federal income tax considerations, if applicable; and
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whether the units if issued as a separate security will be issued in fully registered or global form.
The applicable prospectus supplement will describe the terms of any units. The description in the applicable prospectus supplement of any units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement, which will be filed with the SEC in connection with any offering of units.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters, dealers or agents or directly to one or more purchasers. The securities may be distributed from time to time in one or more transactions at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to the prevailing market price; or
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negotiated prices.
For each type and series of securities offered, the applicable prospectus supplement will set forth the terms of the offering, including, without limitation:
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the initial public offering price;
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the names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them, if any;
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any delayed delivery arrangements;
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the use of proceeds from the sale of the securities;
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any underwriting discounts, concessions, commissions, agency fees or other compensation payable to underwriters, dealers or agents;
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any discounts or concessions allowed or re-allowed or repaid to dealers;
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estimated offering expenses; and
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the securities exchanges on which the securities will be listed, if any.
We may grant underwriters options to purchase additional securities at the public offering price, with additional underwriting commissions or discounts, as applicable, set forth in the prospectus supplement. The terms of any such option will be set forth in the prospectus supplement for those securities.
Underwriters or agents may make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market” offering as defined in Rule 415 under the Securities Act, which includes sales made directly on the Nasdaq Global Select Market, the existing trading market for our common stock, or sales made to or through a market maker other than on an exchange.
We may issue to our existing security holders, though a dividend or similar distribution, rights to purchase shares of our common stock or preferred stock, which may or may not be transferable. In any distribution of rights to our existing security holders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to facilitate the distribution of the unsubscribed securities. The applicable prospectus supplement will describe the specific terms of any offering of our common stock or preferred stock through the issuance of rights including, if applicable, the material terms of any standby underwriting agreement or purchase agreement.
Sales Through Underwriters, Dealers or Agents; Direct Sales
If we use underwriters in any sale of securities offered under this prospectus, the underwriters will buy the securities for their own account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters may then resell the securities in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale or thereafter. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions and the underwriters will be obligated to purchase all the securities offered if
they purchase any securities. The initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. In connection with an offering, underwriters and their affiliates may engage in transactions to stabilize, maintain or otherwise affect the market price of the securities in accordance with applicable law.
If we use dealers in any sale of securities offered under this prospectus, the securities will be sold to such dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale.
If agents are used in any sale of securities offered under this prospectus, they will use their reasonable best efforts to solicit purchases for the period of their appointment.
If securities offered under this prospectus are sold directly, no underwriters, dealers or agents would be involved. We are not making an offer of securities in any state that does not permit such an offer. If we sell securities through dealers or agents, or directly, the terms of any such sales will be described in the applicable prospectus supplement.
Delayed Delivery Contracts
We may authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities offered under this prospectus from us on a future date at a specific price. This type of contract may be made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts.
Market Making, Stabilization and Other Transactions
Each issue of a new series of preferred stock, warrants or rights will be a new issue of securities with no established trading market, except as indicated in the applicable prospectus supplement. Unless indicated in the applicable prospectus supplement, we do not expect to list the offered securities on a securities exchange, except for our common stock, which is listed on the Nasdaq Global Select Market. We can provide no assurance as to whether the securities will have a liquid trading market.
In order to facilitate the offering of any of the securities offered under this prospectus, the underwriters with respect to any such offering may, as described in the prospectus supplement, engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on these securities. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose of preventing or retarding a decline in the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. Any of these activities may have the effect of raising or maintaining the market price of our securities or preventing or retarding a decline in the market price of our securities. As a result, the market price of the securities may be higher than it otherwise would be in the absence of these transactions. The underwriters are not required to engage in these activities, and may end any of these activities at any time, all as described in the prospectus supplement.
Any person participating in the distribution of securities will be subject to applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including without limitation Regulation M, which may limit the timing of transactions involving the securities offered under this prospectus. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of such securities to engage in market-making activities with respect to the particular securities being distributed. All of the above may affect the marketability of the securities offered under this prospectus and the ability of any person or entity to engage in market-making activities with respect to such securities.
Under the securities law of various states, the securities offered under this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition, in various states the securities
offered under this prospectus may not be offered and sold unless such securities have been registered or qualified for sale in the state or an exemption from such registration or qualification is available and is complied with.
Derivative Transactions and Hedging
We, the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings of the securities.
General Information
We expect that any agreements we may have with underwriters, dealers and agents will include provisions indemnifying them against certain civil liabilities, including certain liabilities under the Securities Act, or providing for contribution with respect to payments that they may be required to make. An underwriter, dealer or agent, or any of their affiliates, may be customers of, or otherwise engage in transactions with or perform services for us in the ordinary course of business.
The specific terms of any lock-up provisions with respect to any given offering will be described in the applicable prospectus supplement.
In compliance with guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, and unless otherwise disclosed in the applicable prospectus supplement, we do not intend for the maximum consideration or discount to be received by any FINRA member or independent broker dealer to exceed 8.0% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities will be passed upon for us by Quattlebaum, Grooms & Tull PLLC, Little Rock, Arkansas, and Covington & Burling LLP, Washington, D.C., and for any underwriters, dealers or agents by counsel as may be specified in the applicable prospectus supplement.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The audited annual consolidated financial statements of the Company appearing in our Annual Report on Form 10-K for the year ended December 31, 2020 and the effectiveness of our internal control over financial reporting as of such date have been audited by BKD, LLP, an independent registered public accounting firm, as set forth in its reports included therein, which are incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable by us in connection with the sale and distribution of the securities being registered hereby.
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Amount
to be paid
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SEC registration fee
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$
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(1)
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Legal fees and expenses
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(2)
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Accounting fees and expenses
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(2)
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Printing fees
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(2)
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Trustee and depositary fees and expenses
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(2)
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Blue sky fees and expenses
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(2)
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Rating agency fees
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(2)
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Listing fees and expenses
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(2)
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Miscellaneous
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(2)
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Total
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$
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(2)
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(1)
In accordance with Rule 456(b) and Rule 457(r) under the Securities Act, the registrant is deferring payment of the registration fee associated with this registration statement, except for the registration fee applied in accordance with Rule 457(p) as described in footnote (2) to the Calculation of Registration Fee Table. The balance of the registration fee, if any, will be paid at the time of any offering of securities under this registration statement after the applied fees have been used and is therefore not determinable.
(2)
Because an indeterminate amount of securities is covered by this registration statement, the expenses incurred in connection with the issuance and distribution of such securities are not currently determinable. The estimate of such expenses incurred in connection with securities to be offered and sold pursuant to this registration statement will be included in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Article Sixteenth of the Company’s Articles of Incorporation provides that the Company’s directors will not be personally liable to the Company or any of its shareholders for monetary damages resulting from breaches of their fiduciary duty as directors to the fullest extent permitted by Arkansas law. The Arkansas Business Corporation Act of 1987, as amended, or the 1987 Act, permits the limitation of liability for monetary damages of directors for breaches of fiduciary duty, except (a) for any breach of the director’s duty of loyalty to the Company or its shareholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Arkansas Code Annotated, or the ACA Section 4-27-833, as the same exists or hereafter may be amended, (d) for any transaction from which the director derived an improper personal benefit, or (e) for any action, omission, transaction, or breach of a director’s duty creating any third party liability to any person or entity other than the Company or shareholder.
ACA Section 4-27-850 permits a corporation, under specified circumstances, to indemnify its current and former directors, officers, employees or agents against expenses (including attorney’s fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that the directors, officers, employees or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers,
employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Article Twelfth of the Company’s Articles of Incorporation provides that the Company shall, to the fullest extent permitted by the 1987 Act, indemnify all persons whom it may indemnify pursuant thereto.
The effect of the indemnification provisions contained in the Company’s Articles of Incorporation is to require the Company to indemnify its directors and officers under circumstances where such indemnification would otherwise be discretionary. The Company’s Articles of Incorporation specify that the indemnification rights granted thereunder are enforceable contract rights which are not exclusive of any other indemnification rights that the director or officer may have under any by-law, vote of shareholders or disinterested directors or otherwise. As permitted under Arkansas law, the Company’s Articles of Incorporation also authorize the purchase of directors’ and officers’ insurance for the benefit of its past and present directors and officers, irrespective of whether the Company has the power to indemnify such persons under Arkansas law. The Company currently maintains insurance as authorized by these provisions.
The Company’s Articles of Incorporation also provide that expenses incurred by a director or officer in defending a civil or criminal lawsuit or proceeding arising out of actions taken in his official capacity, or in certain other capacities, will be paid by the Company in advance of the final disposition of the matter upon the approval of (i) the Company’s board of directors by a majority vote of a quorum consisting of directors who are not parties to the proceeding, (ii) if such a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, then by independent legal counsel in a written opinion, or (iii) the shareholders, and upon receipt of an undertaking from the director or officer to repay the sum advanced if it is ultimately determined that he is not entitled to be indemnified by the Company pursuant to applicable provisions of Arkansas law.
The company expects to enter into customary indemnification agreements with its directors and officers. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling us pursuant to the foregoing provisions, the Company has been informed that, in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits
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Exhibit
Number
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Description
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4.3
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Form of Senior Debt Indenture between Simmons First National Corporation and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.3 to Simmons First National Corporation’s Registration Statement on Form S-3 filed on March 19, 2018 (File No. 333-223764)).
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4.4
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Subordinated Indenture, dated as of March 26, 2018, between Simmons First National Corporation and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.1 to Simmons First National Corporation’s Current Report on Form 8-K filed on March 26, 2018 (File No. 000-06253)).
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4.5
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Form of Senior Debt Security.*
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4.6
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4.7
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Form of Depositary Agreement and Certificate.*
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4.8
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Form of Warrant Agreement and Certificate.*
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4.9
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Form of Purchase Contract Agreement.*
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4.10
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Form of Subscription Rights (including form of Subscription Rights Certificate).*
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4.11
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Form of Unit Agreement and Unit Certificate.*
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5.1
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5.2
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23.1
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Consent of BKD, LLP with respect to the audited financial statements of Simmons First National Corporation.
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23.2
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23.3
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24.1
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25.1
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25.2
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Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, for the Subordinated Debt Indenture.
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*
To be filed by amendment or as an exhibit to a report filed pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pine Bluff, State of Arkansas, on March 31, 2021.
SIMMONS FIRST NATIONAL CORPORATION
By:
/s/ George A. Makris, Jr.
Name: George A. Makris, Jr.
Title: Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the persons whose signature appears below appoints and constitutes George A. Makris, III and Stephen C. Massanelli, and each of them, his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute any and all amendments (including post-effective amendments) to the within registration statement (as well as any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, together with all exhibits thereto and all other documents in connection therewith, with the U.S. Securities and Exchange Commission and such other agencies, offices and persons as may be required by applicable law, granting unto each said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, each acting alone may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on March 31, 2021.
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Signature
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Title
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/s/ George A. Makris, Jr.
George A. Makris, Jr.
(Principal Executive Officer)
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Chairman, Chief Executive Officer and Director
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/s/ Robert A. Fehlman
Robert A. Fehlman
(Principal Financial Officer)
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Senior Executive Vice President, Chief Financial Officer, Chief Operating Officer and Treasurer
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/s/ David W. Garner
David W. Garner
(Principal Accounting Officer)
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Executive Vice President, Executive Director of Finance and Accounting and Chief Accounting Officer
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/s/ Jay D. Burchfield
Jay D. Burchfield
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Director
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/s/ Marty D. Casteel
Marty D. Casteel
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Director
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Signature
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Title
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/s/ William E. Clark II
William E. Clark II
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Director
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/s/ Steven A. Cossé
Steven A. Cossé
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Director
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/s/ Mark C. Doramus
Mark C. Doramus
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Director
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/s/ Edward Drilling
Edward Drilling
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Director
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/s/ Eugene Hunt
Eugene Hunt
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Director
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/s/ Jerry M. Hunter
Jerry M. Hunter
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Director
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/s/ Susan S. Lanigan
Susan S. Lanigan
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Director
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/s/ W. Scott McGeorge
W. Scott McGeorge
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Director
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/s/ Thomas Purvis
Thomas Purvis
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Director
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/s/ Robert L. Shoptaw
Robert L. Shoptaw
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Director
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/s/ Julie Stackhouse
Julie Stackhouse
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Director
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/s/ Russell W. Teubner
Russell W. Teubner
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Director
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/s/ Malynda K. West
Malynda K. West
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Director
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Exhibit 5.1
Quattlebaum, Grooms & Tull
A PROFESSIONAL LIMITED LIABILITY COMPANY
111 Center Street
Suite 1900
Little Rock, Arkansas 72201
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Timothy W. Grooms
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Direct Dial
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tgrooms@qgtlaw.com
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501-379-1713
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Licensed in Arkansas and New York
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Licensed
in Arkansas and New York
March 31, 2021
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Ladies and Gentlemen:
Quattlebaum,
Grooms & Tull PLLC is, at the request of George Makris III, Executive Vice President, General Counsel and Secretary of Simmons
First National Corporation, an Arkansas corporation (the “Company”), acting as special counsel in connection with the registration
by the Company under the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale by the Company
from time to time of an unlimited number or dollar or foreign currency amount of: (i) shares of the Company’s Class A
common stock, par value $0.01 per share (the “Common Stock”); (ii) shares of the Company’s preferred stock,
par value $0.01 per share (the “Preferred Stock”); (iii) debt securities, which may be either senior or subordinated
and may be issued in one or more series (the “Debt Securities”), such subordinated
debt securities to be issued under a Subordinated Indenture, dated as of March 26, 2018 (the “Subordinated Indenture”),
between the Company and Wilmington Trust, National Association, as trustee; (iv) depositary shares, representing a fractional interest
in a share of Preferred Stock and evidenced by a depositary receipt (the “Depositary Shares”); (v) warrants to
purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”); (vi) purchase contracts, pursuant
to which the holder will purchase from the Company a specified number of shares of Common Stock or Preferred Stock or a specified number
of Debt Securities at a future date (the “Purchase Contracts”); (vii) purchase units, consisting of Purchase Contracts
and a security (of the Company or another issuer) securing the holder’s obligation to purchase the Common Stock, Preferred Stock
or Debt Securities under the Purchase Contract (the “Purchase Units”); (viii) rights to subscribe for and to purchase
Common Stock, Preferred Stock or Debt Securities (the “Subscription Rights”) and (ix) units comprised of any combination
of Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Purchase Units or Subscription Rights
(the “Units” and, collectively with the Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Purchase
Units and Subscription Rights, the “Covered Securities”), pursuant to the Company’s registration statement on
Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”)
on the date hereof.
The Covered Securities, together
with the Common Stock and the Preferred Stock, are collectively referred to herein as the “Securities.”
In connection with our engagement
we examined the Company’s Amended and Restated Articles of Incorporation (the “Articles”) and By-Laws, as amended (the
“By-Laws”), each as amended as of the date hereof, the Registration Statement and the corporate proceedings taken by the Company
relating to the filing of the Registration Statement and the transactions contemplated thereby. We also examined originals or copies,
certified or otherwise identified to my or their satisfaction, of such documents, corporate records, instruments and other relevant materials
deemed advisable and examined statutes and decisions and reviewed such questions of law as we considered necessary or appropriate. As
to facts material to this letter, we relied as to certain matters on information obtained from public officials, officers of the Company
and other sources believed to be responsible, without any independent verification thereof.
Simmons First National Corporation
March 31, 2021
Page: 2
In our examination, we assumed:
(a) the legal capacity of all natural persons; (b) the genuineness of all signatures; (c) the authenticity of all documents
submitted to me as originals; (d) the conformity to original documents of all documents submitted to me as certified, conformed,
photostatic or facsimile copies; (e) the authenticity of the originals of such latter documents; (f) the truth, accuracy and
completeness of the information, representations and warranties contained in the records, documents, instruments, certificates and records
reviewed; and (g) the absence of any undisclosed modifications to the agreements and instruments we reviewed.
Based on the foregoing, and
subject to assumptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The
Company is duly organized and validly existing as an Arkansas corporation and possesses the requisite corporate power and authority to
execute, deliver and perform its obligations under the Covered Securities.
2. With
respect to any offering of Common Stock, including Common Stock issuable upon the exercise, exchange or conversion of Preferred Stock
or the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Common Stock has
been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the Company
has taken all corporate action necessary to authorize and approve the issuance of the Common Stock; (iii) any legally required consents,
approvals or authorizations have been obtained; (iv) unless issued without certificates, certificates representing the Common Stock
have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered to
the purchasers thereof or other persons entitled thereto; (v) the Common Stock has been issued by the Company against payment of
the agreed-upon consideration therefor in accordance with any relevant agreements and such corporate action; and (vi) in the case
of Common Stock issuable upon conversion of Preferred Stock or Covered Securities, the actions in respect of such Preferred Stock referred
to in paragraph 3 or Covered Securities referred to in paragraph 4 hereof have been completed, then, upon the happening of such events,
such Common Stock will be validly issued, fully paid and nonassessable.
3. With
respect to any offering of any series of Preferred Stock, including any Preferred Stock issuable upon the exercise, exchange or conversion
of the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Preferred Stock has
been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the Company
has taken all corporate action necessary to authorize the issuance of the Preferred Stock; (iii) the Articles of Amendment to the
Articles establishing the designations, preferences, rights, qualifications, limitations or restrictions of such series of Preferred Stock
have been duly approved by appropriate corporate action, executed by duly authorized officers of the Company and filed by the Company
with the Arkansas Secretary of State, all in accordance with the laws of the State of Arkansas; (iv) any legally required consents,
approvals or authorizations have been are obtained; (v) unless issued without certificates, certificates representing the Preferred
Stock have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered
to the purchasers thereof or other persons entitled thereto; (vi) the Preferred Stock with terms so fixed has been issued by the
Company against payment of the agreed-upon consideration therefor in accordance with any relevant agreements and such corporate action;
and (vii) in the case of Preferred Stock issuable upon conversion, exercise or exchange of Covered Securities, the actions in respect
of such Covered Securities referred to in paragraph 4 hereof have been completed, then, upon the happening of such events, the Preferred
Stock will be validly issued, fully paid and nonassessable.
4. With
respect to any offering of Covered Securities, if the Covered Securities are convertible, exercisable or exchangeable into Common Stock
or Preferred Stock, or if Common Stock or Preferred Stock may be acquired upon exercise, conversion or exchange upon fulfillment of the
terms of the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Covered Securities
has been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the
Company has taken all corporate action necessary to authorize the issuance of such Covered Securities; (iii) the Articles of Amendment
to the Articles establishing the designations, preferences, rights, qualifications, limitations or restrictions of any series of Preferred
Stock have been duly approved by appropriate corporate action, executed by duly authorized officers of the Company and filed by the Company
with the Arkansas Secretary of State, all in accordance with the laws of the State of Arkansas; (iv) any legally required consents,
approvals or authorizations have been obtained; (v) the Covered Securities have been presented for conversion, exercise or exchange
in accordance with the terms thereof; and (vi) unless issued without certificates, certificates representing such Common Stock or
Preferred Stock, as applicable, have been duly executed by the duly authorized officers of the Company, countersigned by the transfer
agent therefor and delivered upon such conversion, exercise or exchange to the persons entitled thereto, in accordance with the terms
of such Covered Securities, then, upon the happening of such events, the Common Stock or Preferred Stock issuable upon conversion, exercise
or exchange of the Covered Securities will be validly issued, fully paid and non-assessable.
Simmons First National Corporation
March 31, 2021
Page: 3
5. The
Subordinated Indenture has been duly authorized, executed and delivered by the Company.
For the purposes of this letter,
we assumed that, at the time of the issuance, sale and delivery of each issue of Common Stock, Preferred Stock or Covered Securities:
(i) the Company remains validly existing as a corporation under Arkansas law; (ii) all Covered Securities will constitute valid
and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent such
assumption states, directly or in practical effect, the legal conclusion expressed in paragraph 4 of this opinion letter; (iii) any
Securities being offered will be issued and sold as contemplated in the Registration Statement or the prospectus supplement relating thereto;
(iv) all actions necessary for the issuance of any Common Stock or Preferred Stock and the form and terms thereof will not (a) contravene
the Articles or By-Laws, (b) violate any law, rule or regulation applicable to the Company or (c) result in any conflict
with or breach of any agreement or document binding on the Company; (v) the authorization of any Common Stock or Preferred Stock
by the Company will not have been modified or rescinded, and there will not have occurred any change in law affecting the issuance thereof;
(vi) the Articles and the By-Laws, as currently in effect, will not have been modified or amended and will be in full force and effect,
and the number of Common Stock or Preferred Stock, as the case may be, offered and sold will not exceed the number of Common Stock or
Preferred Stock, as the case may be, authorized under the Articles (as then in effect) and not otherwise reserved for issuance; and (vii) the
certificates, if any, evidencing the Common Stock or the Preferred Stock will be in a form approved for issuance by the Company, which
complies with the Arkansas Business Corporation Act of 1987.
In rendering the foregoing
opinions, we express no opinion with respect to the laws of any jurisdiction other than the laws of the State of Arkansas.
I
am furnishing this letter to you in connection with the filing of the Registration Statement. This letter is limited to the matters set
forth herein, and no other opinion should be inferred beyond the matters expressly stated. The opinions set forth herein are given as
of the date hereof and we do not undertake any obligation to update or supplement this letter if any applicable law changes after the
date hereof or if we become aware of any fact or other circumstances that changes or may change any opinion set forth herein after the
date hereof or for any other reason. Liability of this firm is limited to the fullest extent provided in Ark. Code Ann. §§16-22-310
and 16-114-303.
We consent to the filing of
this letter as an exhibit to the Registration Statement and the reference to our name under the heading “Legal Matters” in
the prospectus constituting part of the Registration Statement, and in any supplement thereto or amendments thereof. In giving such consent,
we do not agree or admit we are within the category of persons whose consent is required under Section 7 of the Securities Act.
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Sincerely,
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QUATTLEBAUM, GROOMS & TULL PLLC
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/s/ Timothy W. Grooms
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Timothy W. Grooms
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Exhibit 5.2
March 31,
2021
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Ladies and Gentlemen:
We have acted as special counsel to Simmons First
National Corporation, an Arkansas corporation (the “Company”), in connection with the registration by the Company under the
Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale from time to time of (i) shares of the
Company’s Class A common stock, par value $0.01 per share (the “Common Stock”), (ii) shares of the Company’s
preferred stock, par value $0.01 per share (the “Preferred Stock”), (iii) debt securities, which may be either senior
or subordinated and may be issued in one or more series (the “Debt Securities”), such subordinated debt securities to be issued
under the Subordinated Indenture, dated as of March 26, 2018 (the “Subordinated Indenture”), between the Company and
Wilmington Trust, National Association, as trustee (the “Subordinated Indenture Trustee”), (iv) depositary shares, representing
a fractional interest in a share of Preferred Stock and evidenced by a depositary receipt (the “Depositary Shares”), (v) warrants
to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), (vi) purchase contracts, pursuant to which
the holder may purchase from the Company a specified number of shares of Common Stock or Preferred Stock or a specified number of Debt
Securities at a future date (the “Purchase Contracts”); (vii) purchase units, each consisting of a Purchase Contract
and a security (of the Company or another issuer) securing the holder’s obligation to purchase the Common Stock, Preferred Stock
or Debt Securities under the Purchase Contract (the “Purchase Units”), (vii) rights to subscribe for and to purchase
Common Stock, Preferred Stock or Debt Securities (the “Subscription Rights”) and (ix) units comprised of any combination
of Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Purchase Units or Subscription Rights
(“Units” and, collectively with Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Purchase Units and Subscription
Rights, the “Covered Securities”), pursuant to the Company’s Registration Statement on Form S-3 (the “Registration
Statement”) filed with the Securities and Exchange Commission (the “Commission”) on the date hereof.
We have reviewed the Registration Statement, the
Subordinated Indenture and such corporate records, certificates and other documents, and such questions of law, as we have considered
necessary or appropriate for the purposes of this opinion. We have assumed that all signatures are genuine, that all documents submitted
to us as originals are authentic and that all copies of documents submitted to us conform to the originals.
Simmons First National Corporation
March 31, 2021
Page 2
We have assumed that, at the time of the issuance,
sale and delivery of any Covered Securities: (i) the execution, delivery and performance by the Company of the senior debt indenture
in the form of Exhibit 4.3 to the Registration Statement and any supplemental indenture thereto (collectively, the “Senior
Indenture”), the Subordinated Indenture and any supplemental indenture thereto, and any deposit agreement, warrant agreement, purchase
contract agreement, unit agreement, subscription agreement or subscription rights certificate, and unit agreement, as applicable (collectively,
the “Documents”), and all actions necessary for the issuance of the applicable Covered Securities, and the form and terms
thereof, will comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any agreement or instrument
to which the Company is a party or by which it is bound or any court or other governmental or regulatory body having jurisdiction over
the Company; and (ii) the Company will have duly authorized, executed and delivered any such Document and will have duly authorized
the issuance of any such Covered Security, and that none of such authorizations will have been modified or rescinded, and there will not
have occurred any change in law affecting the validity, legally binding character or enforceability thereof.
We have also assumed that the Covered Securities
will be offered and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration
Statement and the appropriate prospectus supplement. We have assumed the Documents will be governed by and construed in accordance with
the law of the State of New York. With respect to any Document executed or to be executed by any party other than the Company, we have
assumed that such party has, or will have, duly authorized, executed and delivered the Documents to which it is a party and that each
such Document is, or will be, the valid and binding obligation of such party, enforceable against it in accordance with its terms.
We have assumed further that the Company is duly
organized, validly existing and in good standing under the law of the State of Arkansas and has all requisite power, authority and legal
right to execute, deliver and perform its obligations under the Covered Securities, the Subordinated Indenture, and the Documents. With
respect to all matters of Arkansas law, we note that you are relying on an opinion of Quattlebaum, Grooms & Tull PLLC, dated
as of the date hereof, which opinion is filed as Exhibit 5.1 to the Registration Statement.
Additionally, we have relied as to certain matters
on information obtained from public officials, officers of the Company and other sources believed by us to be responsible.
Simmons First National Corporation
March 31, 2021
Page 3
Based upon the foregoing, and subject to the qualifications set forth
herein, we are of the opinion that, when, as and if:
1. With
respect to the Debt Securities: (i) the Registration Statement and any required post-effective amendments thereto have all become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) the Senior Indenture has been duly executed and delivered on behalf of the Company and a trustee qualified to
act as such under applicable law (the “Senior Indenture Trustee”) and the Senior Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); (iii) the Subordinated Indenture has been duly qualified
under the Trust Indenture Act; (iv) any necessary supplements to the Subordinated Indenture have been duly executed and delivered
on behalf of the Company and the Subordinated Indenture Trustee; (v) all necessary corporate action has been taken by the Company
to authorize, execute and deliver any necessary supplemental indenture and to authorize the form, terms, execution and delivery of the
Debt Securities; (vi) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory
authorities have been obtained; (vii) any shares of Common Stock or Preferred Stock issuable upon the conversion or exchange of such
Debt Securities, as applicable, have been duly and validly authorized and reserved for issuance and sale and (viii) the Debt Securities
have been duly executed by the Company and authenticated by the Senior Indenture Trustee in accordance with the Senior Indenture or the
Subordinated Indenture Trustee in accordance with the Subordinated Indenture and any applicable supplemental indenture, as applicable,
and have been duly issued and delivered against payment therefor in accordance with such corporate action and applicable law and as contemplated
in the Registration Statement and the prospectus supplement setting forth the terms of the Debt Securities and the plan of distribution,
then, upon the happening of such events, such Debt Securities (including any Debt Securities to be issued by the Company upon the conversion
or exercise of other Covered Securities issued by the Company pursuant to the Registration Statement) will constitute the valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
2. With
respect to the Depositary Shares: (i) the Registration Statement and any required post-effective amendments thereto have all become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a deposit agreement
and to authorize the form, terms, execution and delivery of the Depositary Shares and to fix or otherwise determine the consideration
to be received for the Depositary Shares and the terms of the offer and sale thereof; (iii) any legally required consents, approvals,
authorizations and other orders of the Commission and any other regulatory authorities have been obtained; (iv) any shares of Preferred
Stock underlying the Depositary Shares have been duly and validly authorized and reserved for issuance and sale and any such shares of
Preferred Stock have been validly issued and are fully paid and non-assessable; and (v) the depositary receipts evidencing the Depositary
Shares have been duly executed and delivered by the depositary in accordance with the applicable deposit agreement and in accordance with
such corporate action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth
the terms of the Depositary Shares and the plan of distribution, then, upon the happening of such events, the Depositary Shares will be
validly issued and will entitle the holders thereof to the rights specified in the deposit agreement, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
Simmons First National Corporation
March 31, 2021
Page 4
3. With
respect to the Warrants: (i) the Registration Statement and any required post-effective amendments thereto have all become effective
under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required by such laws;
(ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a warrant agreement and to authorize
the form, terms, execution and delivery of the Warrants and to fix or otherwise determine the consideration to be received for the Warrants
and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the
Commission and any other regulatory authorities have been obtained; (iv) any shares of Common Stock or Preferred Stock or any Debt
Securities purchasable upon exercise of such Warrants, as applicable, have been duly and validly authorized and, in the case of shares
of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) the Warrants have been duly executed and sold by the
Company against payment therefor in accordance with any applicable warrant agreement, and in accordance with such corporate action and
applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Warrants
and the plan of distribution, then, upon the happening of such events, the Warrants (including any Warrants to be issued by the Company
upon the conversion or exercise of other Covered Securities issued by the Company pursuant to the Registration Statement) will constitute
the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
4. With
respect to the Purchase Contracts and Purchase Units, (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed
as required by such law; (ii) all necessary corporate action has been taken by the Company to authorize, execute, and deliver a purchase
contract agreement and/or a unit agreement, as applicable, and to authorize the form, terms, execution and delivery of the Purchase Contracts
or Purchase Units, as applicable, and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations
and other orders of the Commission and any other regulatory authorities have been obtained; (iv) any shares of Common Stock, Preferred
Stock or Debt Securities to be issued pursuant to such Purchase Contracts or Purchase Units, as applicable, have been duly and validly
authorized and, in the case of shares of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) the Purchase Contracts
or Purchase Units, as applicable, have been duly executed and sold by the Company against payment therefor in accordance with any applicable
purchase contract agreement or purchase unit agreement, and in accordance with such corporate action and applicable law and as contemplated
in the Registration Statement and the prospectus supplement setting forth the terms of the Purchase Contracts or Purchase Units, as applicable,
and the plan of distribution, then, upon the happening of such events, the Purchase Contracts or Purchase Units, as applicable, will constitute
the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
Simmons First National Corporation
March 31, 2021
Page 5
5. With
respect to the Subscription Rights: (i) the Registration Statement and any required post-effective amendments thereto have all become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a subscription
agreement or subscription rights certificate to the rights agent and to authorize the form, terms, execution and delivery of the Subscription
Rights and to fix or otherwise determine the consideration to be received for the Subscription Rights and the terms of the offer and sale
thereof; (iii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory
authorities have been obtained; (iv) any shares of Common Stock, Preferred Stock or Debt Securities purchasable upon exercise of
such Subscription Rights, as applicable, have been duly and validly authorized and, in the case of shares of Common Stock or Preferred
Stock, reserved for issuance and sale; and (v) the Subscription Rights have been duly executed and sold by the Company against payment
therefor in accordance with any applicable subscription agreement or subscription rights certificate, and in accordance with such corporate
action and applicable law as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Subscription
Rights and the plan of distribution, then, upon the happening of such events, the Subscription Rights will constitute the valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
6. With
respect to the Units: (i) the Registration Statement and any required post-effective amendments thereto have all become effective
under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required by such laws;
(ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a unit agreement and to authorize
the form, terms, execution and delivery of the Units and the other Registered Securities underlying the Units and the terms of the offer
and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the Commission and any other
regulatory authorities have been obtained; (iv) any shares of Common Stock or Preferred Stock or any Debt Securities, Depositary
Shares, Warrants, Purchase Contracts, Purchase Units or Subscription Rights to be issued pursuant to such Units, have been duly and validly
authorized and, in the case of shares of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) the Units and the
other registered securities underlying the Units have been duly executed and sold by the Company against payment therefor in accordance
with any applicable unit agreement, in accordance with such corporate action and applicable law and as contemplated in the Registration
Statement and the related prospectus supplement setting forth the terms of the Units and the other registered securities underlying the
Units and the plan of distribution, then, upon the happening of such events, the Units will constitute the valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity
principles.
Simmons First National Corporation
March 31, 2021
Page 6
Our opinions above are qualified to the extent
that the enforcement of any Covered Securities denominated in a currency other than United States dollars may be limited by requirements
that a claim (or a foreign currency judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law.
We express no opinion as to (i) waivers of
defenses, subrogation and related rights, rights to trial by jury, rights to object to venue, or other rights or benefits bestowed by
operation of law, (ii) releases or waivers of unmatured claims or rights, (iii) indemnification, contribution, exculpation or
arbitration provisions, or provisions for the non-survival of representations, to the extent they purport to indemnify any party against,
or release or limit any party’s liability for, its own breach or failure to comply with statutory obligations, or to the extent
such provisions are contrary to public policy or (iv) provisions for liquidated damages and penalties, penalty interest and interest
on interest.
We are members of the bars of the District of Columbia
and the State of New York. We do not express any opinion herein on any laws other than the law of the State of New York.
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Registration Statement. We also hereby consent to the reference to our firm under the heading “Legal
Matters” in the prospectus constituting part of the Registration Statement. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of the Securities Act.
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Very truly yours,
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/s/ Covington & Burling LLP
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Exhibit 23.1
Consent of Independent Registered
Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Simmons First National Corporation (the Company) of our report dated February 25, 2021, on our audits of the consolidated
financial statements of the Company as of December 31, 2020 and 2019, and for each of the years in the three-year period ended December
31, 2020, which report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020. We also consent
to the incorporation by reference of our report dated February 25, 2021, on our audit of the internal control over financial reporting
of the Company as of December 31, 2020, which report is included in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2020. We also consent to the reference to our firm under the caption “Experts” in the Registration Statement.
BKD, LLP
/s/ BKD, LLP
Little Rock, Arkansas
March 31, 2021
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨
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)
Shaune Sullivan
Vice President
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 636-6522
(Name, address and telephone number of agent for
service)
Simmons First National Corporation
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(Exact name of obligor as specified in its charter)
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Arkansas
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71-0407808
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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501 Main Street
Pine Bluff, Arkansas 71601
(Address of principal executive offices, including
zip code)
Senior Debt Securities
(Title of the indenture securities)
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ITEM 1.
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GENERAL INFORMATION.
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Furnish the following information as to the trustee:
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(a)
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Name and address of each examining or supervising authority
to which it is subject.
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Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
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(b)
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Whether it is authorized to exercise corporate trust powers.
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The trustee is authorized to exercise
corporate trust powers.
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ITEM 2.
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AFFILIATIONS WITH THE OBLIGOR.
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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.
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ITEM 3
– 15.
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Not
applicable
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ITEM 16.
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LIST OF EXHIBITS.
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Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
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1.
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A copy of the Charter for Wilmington Trust, National Association.
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2.
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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 of this Form T-1.
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3.
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The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 of this Form T-1.
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4.
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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.
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6.
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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.
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7.
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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.
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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 31st day of March, 2021.
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WILMINGTON
TRUST, NATIONAL ASSOCIATION
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By:
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/s/ Michael H. Wass
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Name:
Michael H. Wass
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Title:
Vice President
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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:
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1)
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exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or
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2)
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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.
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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:
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1)
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The name and address of each proposed nominee.
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2)
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The principal occupation of each proposed nominee.
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3)
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The total number of shares of capital stock of the association that will be voted for each proposed nominee.
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4)
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The name and residence address of the notifying shareholder.
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5)
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The number of shares of capital stock of the association owned by the notifying shareholder.
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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:
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1)
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Define the duties of the officers, employees, and agents of the association.
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2)
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Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association.
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3)
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Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent
with applicable law.
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4)
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Dismiss officers and employees.
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5)
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Require bonds from officers and employees and to fix the penalty thereof.
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6)
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Ratify written policies authorized by the association's management or committees of the board.
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7)
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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.
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8)
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Manage and administer the business and affairs of the association.
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9)
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Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs
of the association.
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10)
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Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders.
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12)
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Generally perform all acts that are legal for a board of directors to perform.
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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:
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(1)
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The name and address of each proposed nominee;
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(2)
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The principal occupation of each proposed nominee;
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(3)
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The total number of shares of capital stock of the association that will be voted for each proposed nominee;
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(4)
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The name and residence of the notifying shareholder; and
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(5)
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The number of shares of capital stock of the association owned by the notifying shareholder.
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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:
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(1)
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Authorize distributions of assets or dividends;
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(2)
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Approve action required to be approved by shareholders;
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(3)
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Fill vacancies on the board of directors or any of its committees;
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(5)
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Amend articles of association;
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(6)
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Adopt, amend or repeal bylaws; or
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(6)
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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.
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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;
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|
(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;
|
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|
(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, , certify
that: (1) I am the duly constituted (secretary or treasurer) of 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 day
of
(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: March 31, 2021
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By:
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/s/ Michael H. Wass
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Name: Michael H. Wass
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Title: Vice President
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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 December 31,
2020
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ASSETS
|
|
Thousands of Dollars
|
|
|
Cash and balances due from depository institutions:
|
|
|
6,024,491
|
|
|
Securities:
|
|
|
5,706
|
|
|
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:
|
|
|
112,516
|
|
|
Premises and fixed asset
|
|
|
25,764
|
|
|
Other real estate owned:
|
|
|
360
|
|
|
Investments in unconsolidated subsidiaries and associated companies:
|
|
|
0
|
|
|
Direct and indirect investments in real estate ventures:
|
|
|
0
|
|
|
Intangible assets:
|
|
|
567
|
|
|
Other assets:
|
|
|
60,988
|
|
|
Total Assets:
|
|
|
6,230,392
|
|
|
LIABILITIES
|
|
Thousands of Dollars
|
|
|
Deposits
|
|
|
5,525,170
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
0
|
|
|
Other borrowed money:
|
|
|
0
|
|
|
Other Liabilities:
|
|
|
74,904
|
|
|
Total Liabilities
|
|
|
5,600,074
|
|
|
EQUITY CAPITAL
|
|
Thousands of Dollars
|
|
|
Common Stock
|
|
|
1,000
|
|
|
Surplus
|
|
|
407,887
|
|
|
Retained Earnings
|
|
|
221,713
|
|
|
Accumulated other comprehensive income
|
|
|
(282
|
)
|
|
Total Equity Capital
|
|
|
630,318
|
|
|
Total Liabilities and Equity Capital
|
|
|
6,230,392
|
|
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨
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)
Shaune Sullivan
Vice President
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 636-6522
(Name, address and telephone number of agent for
service)
Simmons First National Corporation
|
(Exact name of obligor as specified in its charter)
|
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Arkansas
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71-0407808
|
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(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
501 Main Street
Pine Bluff, Arkansas 71601
(Address of principal executive offices, including
zip code)
Subordinated Debt Securities
(Title of the indenture securities)
|
|
ITEM 1.
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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
|
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ITEM 16.
|
LIST OF EXHIBITS.
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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 of this Form T-1.
|
|
|
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 of this Form T-1.
|
|
|
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.
|
|
|
5.
|
Not applicable.
|
|
|
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.
|
|
|
8.
|
Not applicable.
|
|
|
9.
|
Not applicable.
|
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 31st day of March, 2021.
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
By:
|
/s/ Michael H. Wass
|
|
|
Name:
|
Michael H. Wass
|
|
|
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:
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1)
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The name and address of each proposed nominee.
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2)
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The principal occupation of each proposed nominee.
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3)
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The total number of shares of capital stock of the association that will be voted for each proposed nominee.
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4)
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The name and residence address of the notifying shareholder.
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5)
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The number of shares of capital stock of the association owned by the notifying shareholder.
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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:
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1)
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Define the duties of the officers, employees, and agents of the association.
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2)
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Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association.
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3)
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Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent
with applicable law.
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4)
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Dismiss officers and employees.
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5)
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Require bonds from officers and employees and to fix the penalty thereof.
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6)
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Ratify written policies authorized by the association's management or committees of the board.
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7)
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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.
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8)
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Manage and administer the business and affairs of the association.
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9)
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Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs
of the association.
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10)
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Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders.
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11)
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Make contracts.
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12)
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Generally perform all acts that are legal for a board of directors to perform.
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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:
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(1)
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The name and address of each proposed nominee;
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(2)
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The principal occupation of each proposed nominee;
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(3)
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The total number of shares of capital stock of the association that will be voted for each proposed nominee;
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(4)
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The name and residence of the notifying shareholder; and
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(5)
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The number of shares of capital stock of the association owned by the notifying shareholder.
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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:
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(1)
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Authorize distributions of assets or dividends;
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(2)
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Approve action required to be approved by shareholders;
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(3)
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Fill vacancies on the board of directors or any of its committees;
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(5)
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Amend articles of association;
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(6)
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Adopt, amend or repeal bylaws; or
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(6)
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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.
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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:
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(1)
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The types of nominees to which it applies;
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(2)
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The rights or privileges that the association recognizes in a beneficial owner;
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(3)
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How the nominee may request the association to recognize the beneficial owner as the shareholder;
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(4)
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The information that must be provided when the procedure is selected;
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|
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(5)
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The period over which the association will continue to recognize the beneficial owner as the shareholder;
|
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(6)
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Other aspects of the rights and duties created.
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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, , certify
that: (1) I am the duly constituted (secretary or treasurer) of 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 day of .
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: March 31, 2021
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By:
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/s/ Michael H. Wass
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Name: Michael H. Wass
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Title: Vice President
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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 December 31,
2020
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ASSETS
|
|
Thousands of Dollars
|
|
|
Cash and balances due from depository institutions:
|
|
|
6,024,491
|
|
|
Securities:
|
|
|
5,706
|
|
|
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:
|
|
|
112,516
|
|
|
Premises and fixed asset
|
|
|
25,764
|
|
|
Other real estate owned:
|
|
|
360
|
|
|
Investments in unconsolidated subsidiaries and associated companies:
|
|
|
0
|
|
|
Direct and indirect investments in real estate ventures:
|
|
|
0
|
|
|
Intangible assets:
|
|
|
567
|
|
|
Other assets:
|
|
|
60,988
|
|
|
Total Assets:
|
|
|
6,230,392
|
|
|
LIABILITIES
|
|
Thousands of Dollars
|
|
|
Deposits
|
|
|
5,525,170
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
0
|
|
|
Other borrowed money:
|
|
|
0
|
|
|
Other Liabilities:
|
|
|
74,904
|
|
|
Total Liabilities
|
|
|
5,600,074
|
|
|
EQUITY CAPITAL
|
|
Thousands of Dollars
|
|
|
Common Stock
|
|
|
1,000
|
|
|
Surplus
|
|
|
407,887
|
|
|
Retained Earnings
|
|
|
221,713
|
|
|
Accumulated other comprehensive income
|
|
|
(282
|
)
|
|
Total Equity Capital
|
|
|
630,318
|
|
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Total Liabilities and Equity Capital
|
|
|
6,230,392
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