Texas
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75-2453320
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☒
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Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
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Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
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Title of each class of securities to be
registered
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Amount to be registered
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Proposed maximum
offering price per
security(1)
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Proposed maximum
aggregate offering
price(2)
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Amount of registration
fee
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4.50% Fixed-to-Floating Rate Subordinated Notes due 2030
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$50,000,000
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100%
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$50,000,000
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$5,455.00
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(1)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f) under the Securities Act of 1933, as amended (the “Securities Act”).
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(2)
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Calculated pursuant to Rule 457(f) under the Securities Act.
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our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2020, filed with the SEC on May 13, 2020, for the quarter ended June 30, 2020, filed with the SEC on August 14, 2020, and for the quarter ended September 30, 2020, filed with the SEC on November 6, 2020;
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our Current Reports on Form 8-K or Form 8-K/A filed on January 17, 2020, January 28, 2020, March 16, 2020, April 16, 2020, May 21, 2020, July 16, 2020, September 30, 2020 (solely with respect to items 1.01, 2.03, 8.01 and 9.01), October 22, 2020, and November 2, 2020; and
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our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 2, 2020 (solely to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the year ended December 31, 2019).
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the ongoing COVID-19 pandemic and its uncertain economic impact on the Company’s customers and communities;
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our ability to effectively execute our expansion strategy and manage our growth, including identifying and consummating suitable acquisitions;
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business and economic conditions, particularly those affecting our market areas, as well as the concentration of our business in such market areas;
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high concentrations of loans secured by real estate located in our market areas;
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risks associated with our commercial loan portfolio, including the uncertain economic consequences of the ongoing COVID-19 pandemic or any deterioration in value of the general business assets that secure such loans;
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potential changes in the prices, values and sales volumes of commercial and residential real estate securing our real estate loans;
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risks associated with our agricultural loan portfolio, including the heightened sensitivity to weather conditions, commodity prices, and other factors generally outside the borrowers and our control;
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risks associated with the sale of crop insurance products, including termination of or substantial changes to the federal crop insurance program;
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risks related to the significant amount of credit that we have extended to a limited number of borrowers and in a limited geographic area;
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public funds deposits comprising a relatively high percentage of our deposits;
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potential impairment on the goodwill we have recorded or may record in connection with business acquisitions;
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our ability to maintain our reputation;
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our ability to successfully manage our credit risk and the sufficiency of our allowance for loan losses;
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our ability to attract, hire and retain qualified management personnel;
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our dependence on our management team, including our ability to retain executive officers and key employees and their customer and community relationships;
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interest rate fluctuations, which could have an adverse effect on our profitability;
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competition from banks, credit unions and other financial services providers;
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our ability to keep pace with technological change or difficulties we may experience when implementing new technologies;
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system failures, service denials, cyber-attacks and security breaches;
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our ability to maintain effective internal control over financial reporting;
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employee error, fraudulent activity by employees or customers and inaccurate or incomplete information about our customers and counterparties;
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increased capital requirements imposed by banking regulators, which may require us to raise capital at a time when capital is not available on favorable terms or at all;
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our ability to maintain adequate liquidity and to raise necessary capital to fund our acquisition strategy and operations or to meet increased minimum regulatory capital levels;
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costs and effects of litigation, investigations or similar matters to which we may be subject, including any effect on our reputation;
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natural disasters, severe weather, acts of god, acts of war or terrorism, outbreaks of hostilities, public health outbreaks (such as the ongoing COVID-19 pandemic), other international or domestic calamities, and other matters beyond our control;
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tariffs and trade barriers;
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compliance with governmental and regulatory requirements, including the Dodd-Frank Act Wall Street Reform and Consumer Protection Act, Economic Growth, Regulatory Relief, and Consumer Protection Act, and others relating to banking, consumer protection, securities and tax matters; and
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changes in the laws, rules, regulations, interpretations or policies relating to financial institutions, accounting, tax, trade, monetary and fiscal matters, including the policies of the Board of Governors of the Federal Reserve System (“Federal Reserve”) and as a result of initiatives of the Trump administration.
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you are acquiring the New Notes in the ordinary course of your business;
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you are not participating or engaged in, do not intend to participate or engage in, and have no arrangement or understanding with any person to participate in, the distribution of the New Notes issued to you;
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you are not an “affiliate” of ours within the meaning of Rule 405 under the Securities Act; and
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you are not acting on behalf of any person who could not truthfully make these statements.
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will rank junior in right of payment to all of our existing and future senior indebtedness (as defined herein);
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will rank equally in right of payment with all of our existing and future unsecured subordinated indebtedness;
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will rank senior in right of payment and upon the Company’s liquidation to any indebtedness the terms of which provide that such indebtedness ranks junior to promissory notes, bonds, debentures and other evidences of indebtedness of types that include the Subordinated Notes; and
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will be effectively subordinated to all of the existing and future indebtedness, liabilities and other obligations of the Bank and our other current and future subsidiaries, including without limitation the Bank’s deposit liabilities and claims of other creditors of the Bank.
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limiting our ability to satisfy our obligations with respect to the notes;
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increasing our vulnerability to general adverse economic industry conditions;
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limiting our ability to obtain additional financing to fund future working capital, capital expenditures and other general corporate requirements;
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requiring a substantial portion of our cash flow from operations for the payment of principal of and interest on our indebtedness and thereby reducing our ability to use our cash flow to fund working capital, capital expenditures and general corporate requirements;
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limiting our flexibility in planning for, or reacting to, changes in our business and the industry; and
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putting us at a disadvantage compared to competitors with less indebtedness.
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the New Notes have been registered with the SEC under the Securities Act and, as a result, will not bear any legend restricting their transfer;
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the New Notes bear different CUSIP numbers from the Old Notes;
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the New Notes are generally not subject to transfer restrictions;
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the New Notes will not be entitled to registration rights under the registration rights agreements or otherwise; and
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because the New Notes will not be entitled to registration rights, holders of the New Notes will not have the right to additional interest under the circumstances described in the registration rights agreements relating to our fulfillment of our registration obligations.
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file a registration statement with the SEC under the Securities Act with respect to a registered offer to exchange the Old Notes for substantially identical notes that do not contain transfer restrictions and will be registered under the Securities Act; and
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use our commercially reasonable efforts to cause that registration statement to become effective no later than January 27, 2021, which is the date that is 120 days after September 28, 2020.
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you are, or the person receiving the New Notes is, acquiring the New Notes in the ordinary course of business;
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you do not, nor does any such person, have an arrangement or understanding with any person to participate in any distribution (within the meaning of the Securities Act) of the New Notes;
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you are not, nor is any such person, our affiliate as such term is defined under Rule 405 under the Securities Act;
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you are not, or any such person is not, a broker-dealer registered under the Exchange Act, and you are not engaged in or such person is not engaged in, and do not intend to engage in, any distribution (within the meaning of the Securities Act) of the New Notes; and
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you are not acting on behalf of any person who could not truthfully make these statements.
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will not be able to rely on the interpretation of the staff of the SEC set forth in the no-action letters described above;
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will not be able to tender Old Notes in the exchange offer; and
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must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the New Notes, unless the sale or transfer is made pursuant to an exemption from those requirements.
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such Old Notes are tendered to us other than in accordance with the terms and conditions of the exchange offer;
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we determine that the exchange offer violates any law, statute, rule, regulation or interpretation by the staff of the SEC; or
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any action or proceeding is instituted or threatened in any court or by or before any governmental agency relating to the exchange offer which, in our judgment, could reasonably be expected to impair our ability to proceed with the exchange offer.
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a properly transmitted “agent’s message” (as defined below) to be received by the exchange agent through ATOP prior to 5:00 p.m., Eastern Standard Time, on the expiration date; and
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a timely confirmation of a book-entry tender of the Old Notes into the exchange agent’s account at DTC through ATOP pursuant to the procedure for book-entry transfer described below to be received by the exchange agent prior to 5:00 p.m., Eastern Standard Time on the expiration date.
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name of the beneficial owner tendering such Old Notes ;
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account number of the beneficial owner tendering such Old Notes ;
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principal amount of Old Notes tendered by such beneficial owner; and
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a confirmation that the beneficial owner of the Old Notes has agreed to be bound by the terms of the accompanying letter of transmittal.
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any New Notes that you receive will be acquired in the ordinary course of business;
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you have no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the New Notes in violation of the provisions of the Securities Act;
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you are not an “affiliate” (within the meaning of Rule 405 under the Securities Act); and
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if you are a broker-dealer that will receive New Notes for your own account in exchange for Old Notes, you acquired those New Notes as a result of market-making or other trading activities and you will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such New Notes.
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specify the name of the tendering holder of Old Notes;
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specify the principal amount of the Old Notes delivered for exchange;
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specify the name and number of the account at DTC to be credited with the withdrawn Old Notes;
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include a statement that such holder is withdrawing its election to have such Old Notes exchanged; and
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otherwise comply with the procedures of DTC.
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By Mail or Hand Delivery:
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UMB Bank, National Association
5555 San Felipe St., Suite 870
Houston, Texas 77056
Attention: Mauri J. Cowen / Corporate Trust
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Telephone:
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(713) 300-0587
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Email:
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mauri.cowen@umb.com
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New Notes and/or substitute Old Notes not exchanged are to be delivered to, or registered or issued in the name of, any person other than the registered holder of the Old Notes so exchanged;
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tendered Old Notes are registered in the name of any person other than the person signing the letter of transmittal; or
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a transfer tax is imposed for any reason other than the exchange of Old Notes under the exchange offer.
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to us or to any of our subsidiaries;
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under a registration statement which has been declared effective under the Securities Act;
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for so long as the Old Notes are eligible for resale pursuant to Rule 144A under the Securities Act, to a person the holder of the Old Notes and any person acting on its behalf reasonably believes is a “qualified institutional buyer” as defined in Rule 144A, that purchases for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the transfer is being made in reliance on Rule 144A; or
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under any other available exemption from the registration requirements of the Securities Act (in which case we and the trustee shall have the right to require the delivery of an opinion of counsel (at the holder’s sole cost), certifications and/or other information satisfactory to us and the trustee);
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the registration statement is not filed with the SEC on or prior to November 28, 2020, which is the date that is 60 days after September 29, 2020;
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the registration statement has not been declared effective by the SEC on or prior to January 27, 2021, which is the date that is 120 days after September 29, 2020; or
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the exchange offer is not completed on or prior to the 45th day following the effective date of the registration statement;
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the New Notes have been registered with the SEC under the Securities Act and, as a result, will not bear any legend restricting their transfer;
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the New Notes bear different CUSIP numbers from the Old Notes;
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the New Notes generally will not be subject to transfer restrictions;
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the New Notes will not be entitled to registration rights under the registration rights agreements or otherwise; and
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because the New Notes will not be entitled to registration rights, holders of the New Notes will not have the right to additional interest under the circumstances described in the registration rights agreements relating to our fulfillment of our registration obligations.
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“SOFR” means the daily Secured Overnight Financing Rate provided by the FRBNY, as the administrator of the benchmark (or a successor administrator), on the FRBNY’s Website.
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“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
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“Term SOFR Administrator” means any entity designated by the Relevant Governmental Body as the administrator of Term SOFR (or a successor administrator).
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“Three-Month Term SOFR” means the rate for Term SOFR for a tenor of three months that is published by the Term SOFR Administrator at the Reference Time for any Floating Interest Period, as determined by the Calculation Agent after giving effect to the Three-Month Term SOFR Conventions.
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“Three-Month Term SOFR Conventions” means any determination, decision or election with respect to any technical, administrative or operational matter (including with respect to the manner and timing of the publication of Three-Month Term SOFR, or changes to the definition of “Floating Interest Period”, timing and frequency of determining Three-Month Term SOFR with respect to each Floating Interest Period and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Company decides may be appropriate to reflect the use of Three-Month Term SOFR as the Benchmark in a manner substantially consistent with market practice (or, if the Company decides that adoption of any portion of such market practice is not administratively feasible or if the Company determines that no market practice for the use of Three-Month Term SOFR exists, in such other manner as the Company determines is reasonably necessary).
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“Benchmark” means, initially, Three-Month Term SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Three-Month Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
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“Benchmark Replacement” means the Interpolated Benchmark with respect to the then-current Benchmark, plus the Benchmark Replacement Adjustment for such Benchmark; provided that if (a) the Calculation Agent cannot determine the Interpolated Benchmark as of the Benchmark Replacement Date or (b) the then-current Benchmark is Three-Month Term SOFR and a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Three-Month Term SOFR (in which event no Interpolated Benchmark with respect to Three-Month Term SOFR shall be determined), then “Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Calculation Agent, as of the Benchmark Replacement Date:
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(a)
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the sum of (i) Compounded SOFR and (ii) the Benchmark Replacement Adjustment;
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(b)
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the sum of: (i) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (ii) the Benchmark Replacement Adjustment;
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(c)
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the sum of: (i) the ISDA Fallback Rate and (ii) the Benchmark Replacement Adjustment;
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(d)
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the sum of: (i) the alternate rate of interest that has been selected by the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (ii) the Benchmark Replacement Adjustment.
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“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Calculation Agent, as of the Benchmark Replacement Date:
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(a)
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the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
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(b)
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if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment;
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(c)
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the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at such time.
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“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Floating Interest Period,” timing and frequency of determining rates with respect to each Floating Interest Period and making payments of interest, rounding of amounts or tenors and other administrative matters) that the Company decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company decides that adoption of any portion of such market practice is not administratively feasible or if the Company determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Company determines is reasonably necessary).
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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
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(a)
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in the case of clause (a) of the definition of “Benchmark Transition Event,” the relevant Reference Time in respect of any determination;
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(b)
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in the case of clause (b) or (c) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or
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(c)
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in the case of clause (d) of the definition of “Benchmark Transition Event,” the date of such public statement or publication of information referenced therein.
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“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
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(a)
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if the Benchmark is Three-Month Term SOFR, (i) the Relevant Governmental Body has not selected or recommended a forward-looking term rate for a tenor of three months based on SOFR, (ii) the development of a forward-looking term rate for a tenor of three months based on SOFR that has been recommended or selected by the Relevant Governmental Body is not complete or (iii) the Company determines that the use of a forward-looking rate for a tenor of three months based on SOFR is not administratively feasible;
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(b)
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a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;
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(c)
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a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or
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(d)
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a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.
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“Calculation Agent” means such bank or other entity (which may be the Company or an affiliate of the Company) as may be appointed by the Company to act as Calculation Agent for the Subordinated Notes during the Floating Interest Period.
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“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate being established by the Company or its designee in accordance with:
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(a)
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the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining Compounded SOFR; provided that:
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(b)
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if, and to the extent that, the Company or its designee determines that Compounded SOFR cannot be determined in accordance with clause (a) above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by the Company or its designee giving due consideration to any industry-accepted market practice for U.S. dollar denominated floating rate notes at such time.
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“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
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“FRBNY” means the Federal Reserve Bank of New York.
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“FRBNY’s Website” means the website of the FRBNY at http://www.newyorkfed.org, or any successor source.
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“Interpolated Benchmark” with respect to the Benchmark means the rate determined for the Corresponding Tenor by interpolating on a linear basis between: (1) the Benchmark for the longest period (for which the Benchmark is available) that is shorter than the Corresponding Tenor and (2) the Benchmark for the shortest period (for which the Benchmark is available) that is longer than the Corresponding Tenor. For the avoidance of doubt, the calculation of Interpolated Benchmark will exclude the Benchmark Replacement Adjustment and the spread specified in the first paragraph of Section 2 of the notes.
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“ISDA” means the International Swaps and Derivatives Association, Inc. or any successor thereto.
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“ISDA Definitions” means the 2006 ISDA Definitions published by the ISDA or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
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“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
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“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
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“Reference Time” with respect to any determination of a Benchmark means (1) if the Benchmark is Three-Month Term SOFR, the time determined by the Calculation Agent after giving effect to the Three-Month Term SOFR Conventions, and (2) if the Benchmark is not Three-Month Term SOFR, the time determined by the Calculation Agent after giving effect to the Benchmark Replacement Conforming Changes.
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“Relevant Governmental Body” means the Federal Reserve and/or the FRBNY, or a committee officially endorsed or convened by the Federal Reserve and/or the FRBNY or any successor thereto.
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“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
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our indebtedness for borrowed money, whether or not evidenced by notes, debentures, bonds, securities or other similar instruments issued under the provisions of any indenture, fiscal agency agreement, debenture or note purchase agreement or other agreement, including any senior debt securities that we may offer;
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our indebtedness for money borrowed or represented by purchase money obligations, as defined below;
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our obligations as lessee under leases of property whether made as part of a sale and leaseback transaction to which we are a party or otherwise;
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our reimbursement and other obligations relating to letters of credit, bankers’ acceptances and similar obligations;
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our obligations in respect of interest rate swap, cap or other agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity contracts and other similar arrangements;
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all of our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business;
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any obligation of ours to our general creditors;
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all obligations of the types referred to in the bullets above of other persons for the payment as to which we are liable contingently or otherwise to pay or advance money as obligor, guarantor, endorser or otherwise;
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all obligations of the types referred to in the bullets above of other persons secured by a lien on any property or asset of ours; and
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deferrals, renewals or extensions of any of the indebtedness or obligations described in the bullets above.
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any subordinated debentures or junior subordinated debentures of the Company underlying trust preferred securities issued by subsidiary trusts of the Company that were outstanding as of the date of the issuance of the Old Notes or that are issued after the date of such issuance by a subsidiary trust of the Company;
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the subordinated notes of the Company issued in December 2018, and in each case any subordinated notes issued in exchange therefor or upon transfer thereof, in each case that were outstanding as of the date of the issuance of the Old Notes or that are issued in exchange for or upon transfer of such subordinated notes after the date of such issuance;
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any indebtedness, obligation or liability referred to in the bullets above that is subordinated to indebtedness, obligations or liabilities of ours to substantially the same extent as or to a greater extent than the notes are subordinated; and
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the notes and, unless expressly provided in the terms thereof, any of our indebtedness to our subsidiaries.
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we are subject to any termination, winding up, liquidation or reorganization, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of our creditors or any other marshalling of our assets and liabilities; or
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a default in the payment of principal of, or premium, if any, or interest on, any senior indebtedness, has occurred and is continuing beyond any applicable grace period or an event of default has occurred and is continuing with respect to any senior indebtedness, or would occur as a result of a payment of principal of, or interest on, the notes being made and that event of default would permit the holders of any senior indebtedness to accelerate the maturity of that senior indebtedness and such default or event of default has not been cured, waived or otherwise have ceased to exist.
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a “Tier 2 Capital Event,” which is defined in the indenture to mean receipt by us of a written legal opinion from counsel experienced in such matters to the effect that, as a result of any change, event, occurrence, circumstance or effect occurring on or after the date hereof, there is more than an insubstantial risk that the notes do not constitute, or within 90 days of the date of such legal opinion will not constitute, Tier 2 Capital (or its then equivalent if the Company were subject to such capital requirement);
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a “Tax Event,” which is defined in the indenture to mean the receipt by us of a legal opinion from counsel experienced in such matters to the effect that, as a result of a change or a prospective change in law on or after the date hereof, there is more than an insubstantial risk that interest paid by the Company on the notes is not, or, within 90 days of the date of such legal opinion, will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes; or
|
•
|
an “Investment Company Event,” which is defined in the indenture to mean receipt by us of a legal opinion from counsel experienced in such matters to the effect that there is more than an insubstantial risk that the Company is or, within 90 days of the date of such legal opinion will be, considered an “investment company” that is required to be registered under the Investment Company Act of 1940, as amended.
|
•
|
DTC notifies us that it is unwilling or unable to continue acting as the depositary for the global note, or DTC has ceased to be a clearing agency registered under the Exchange Act, and in either case we fail to appoint a successor depositary; or
|
•
|
an event of default with respect to the notes represented by the global note has occurred and is continuing.
|
•
|
you cannot get notes registered in your name if they are represented by the global note;
|
•
|
you cannot receive certificated (physical) notes in exchange for your beneficial interest in the global note;
|
•
|
you will not be considered to be the owner or holder of the global note or any note it represents for any purpose; and
|
•
|
all payments on the global note will be made to DTC or its nominee.
|
•
|
the entry of a court decree or order for relief in respect of us in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect, and such decree or order will have continued unstayed and in effect for a period of 60 consecutive days;
|
•
|
the commencement by us of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect, or the consent by us to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
|
•
|
our failure to make payment of any interest on the notes when due, which continues for 30 days;
|
•
|
our failure to make payment of any principal of the notes when due;
|
•
|
our failure to perform any other covenant or agreement of ours under the notes or the indenture, which continues for 60 days after written notice as provided for in the indenture; and
|
•
|
our default under any of our other indebtedness having an aggregate principal amount of at least $25,000,000, whether such indebtedness now exists or is created or incurred in the future, which default (i) constitutes failure in payment of principal of such indebtedness when due after the expiration of any applicable grace period without such indebtedness having been discharged or (ii) results in such indebtedness becoming due or being declared due and payable prior to the date on which it otherwise would have become due or payable without such indebtedness having been discharged or such acceleration having been rescinded or annulled.
|
•
|
to evidence a successor to our organization, and the assumption by any such successor of our covenants contained in the indenture and the notes;
|
•
|
to add to our covenants for the benefit of the holders, or to surrender any right or power conferred upon us with respect to the notes;
|
•
|
to permit or facilitate the issuance of notes in uncertificated or global form, as long as any such action will not adversely affect the interests of the holders;
|
•
|
to evidence and provide for the acceptance of appointment under the indenture by a successor trustee and to add to or change any provisions of the indenture to provide for or facilitate the administration of the trusts hereunder by more than one trustee;
|
•
|
to cure any ambiguity or to correct or supplement any provision in the indenture that may be defective or that may be inconsistent with any other provision in the indenture;
|
•
|
to make any other provisions with respect to matters or questions arising under the indenture that will not adversely affect the interests of the holders of the notes;
|
•
|
to include additional events of default;
|
•
|
to supplement any of the provisions of the indenture as necessary to permit or facilitate legal or covenant defeasance, or satisfaction and discharge of the notes, as long as any such action will not adversely affect the interests of any holder;
|
•
|
to provide for the issuance of the New Notes in connection with this exchange offer;
|
•
|
to conform any provision of the indenture to the requirements of the Trust Indenture Act; or
|
•
|
to make any change that does not adversely affect the legal rights under the indenture of any holder.
|
•
|
reduce the rate of, or change the time for payment of, interest on any note;
|
•
|
reduce the principal of or change the stated maturity of any note, change the date on which any note may be subject to redemption, or reduce the price at which any note subject to redemption may be redeemed;
|
•
|
make any note payable in money other than dollars;
|
•
|
modify any provision of the indenture protecting the right of a holder to receive payment of principal of and interest on such note on or after the due date thereof or to bring suit to enforce payment;
|
•
|
reduce the threshold of holders the consent of whom is required for any such supplemental indenture or required to waive certain defaults and covenants under the indenture; or
|
•
|
modify any of the provisions of the section of the indenture governing supplemental indentures with the consent of holders, or those provisions relating to waiver of defaults or certain covenants, except to increase any such percentage required for such actions or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each outstanding note affected thereby.
|
•
|
either: (1) all notes that have been authenticated and delivered have been delivered to the trustee for cancellation, or (2) all notes that have not been delivered to the trustee for cancellation (i) have become due and payable or (ii) will become due and payable at their stated maturity within one year or are to be called
|
•
|
we have paid or caused to be paid all other sums then due and payable by us under the indenture with respect to the notes; and
|
•
|
we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been satisfied.
|
•
|
the rights of the holders of such notes to receive payments in respect of the principal of and interest on such notes when payments are due;
|
•
|
our obligations with respect to such notes concerning registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for payments on the notes to be held in trust;
|
•
|
the rights, powers, trusts, duties and immunities of the trustee under the indenture; and
|
•
|
the defeasance provisions of the indenture.
|
•
|
we must irrevocably have deposited or caused to be deposited with the trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of such notes, (1) an amount in dollars, (2) U.S. government obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment on the notes, money in an amount, or (3) a combination thereof, in each case sufficient to pay and discharge, and which will be applied by the trustee to pay and discharge, the entire indebtedness in respect of the principal of and interest on the notes on the stated maturity thereof or, with respect to notes called for redemption, on the redemption date thereof;
|
•
|
in the case of legal defeasance, we will have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the IRS a ruling or since the date of the indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion will confirm that, the holders of the notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance to be effected with respect to such notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such legal defeasance had not occurred;
|
•
|
in the case of covenant defeasance, we will have delivered to the trustee an opinion of counsel to the effect that the holders of the outstanding notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance to be effected with respect to the notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such covenant defeasance had not occurred;
|
•
|
no event of default, or event which with notice or lapse of time or both would become an event of default with respect to the outstanding notes will have occurred and be continuing at the time of such deposit referred to in the first bullet point above (and in the case of legal defeasance will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit);
|
•
|
such legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the
|
•
|
indenture or any other material agreement or material instrument to which we or our subsidiaries are a party or by which we or our subsidiaries are bound; and
|
•
|
we will have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent with respect to such legal defeasance or covenant defeasance have been satisfied.
|
Item 20.
|
Indemnification of Directors and Officers.
|
Item 21.
|
Exhibits and Financial Statement Schedules.
|
(a)
|
Exhibits
|
| |
—
|
| |
Amended and Restated Certificate of Formation of South Plains Financial, Inc., incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form S-1 of South Plains Financial, Inc. filed on April 29, 2019 (Registration No. 333-230851).
|
|
|
| |
|
| |
|
| |
—
|
| |
Amended and Restated Bylaws of South Plains Financial, Inc., incorporated herein by reference to Exhibit 3.2 of the Registration Statement on Form S-1 of South Plains Financial, Inc. filed on April 29, 2019 (Registration No. 333-230851).
|
|
|
| |
|
| |
|
| |
—
|
| |
Indenture, dated as of September 29, 2020 by and between South Plains Financial, Inc. and UMB Bank, National Association, as trustee, and incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on September 30, 2020 (File No. 001-38895).
|
|
|
| |
|
| |
|
| |
—
|
| |
Form of 4.50% Fixed-to-Floating Rate Subordinated Note due 2030 (included as Exhibit A-2 to the Indenture filed as Exhibit 4.6 hereto), and incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on September 30, 2020 (File No. 001-38895).
|
|
|
| |
|
| |
|
| |
—
|
| |
Form of Subordinated Note Purchase Agreement, dated September 28, 2020, by and among South Plains Financial, Inc. and the purchasers party thereto, and incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on September 30, 2020 (File No. 001-38895).
|
|
|
| |
|
| |
|
| |
—
|
| |
Form of Registration Rights Agreement, dated as of September 29, 2020, by and among South Plains Financial, Inc. and the purchasers party thereto, and incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on September 30, 2020 (File No. 001-38895).
|
|
|
| |
|
| |
|
| |
—
|
| |
Opinion of Hunton Andrews Kurth LLP.
|
|
|
| |
|
| |
|
| |
—
|
| |
Consent of Weaver and Tidwell, L.L.P.
|
|
|
| |
|
| |
|
| |
—
|
| |
Consent of Hunton Andrews Kurth LLP (included in Exhibit 5.1).
|
|
|
| |
|
| |
|
| |
—
|
| |
Power of Attorney (included on original signature page to this registration statement).
|
|
|
| |
|
| |
|
| |
—
|
| |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of UMB Bank, N.A., with respect to the Indenture, dated as of September 29, 2020, between South Plains Financial, Inc. and UMB Bank, N.A., as trustee, regarding 4.50% Fixed-to-Floating Rate Subordinated Notes due 2030
|
|
|
| |
|
| |
|
| |
—
|
| |
Form of Global Note Letter of Transmittal relating to the 4.50% Fixed-to-Floating Rate Subordinated Notes due 2030
|
*
|
Filed herewith.
|
(b)
|
Financial Statement Schedules:
|
Item 22.
|
Undertakings.
|
(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 the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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.
|
(2)
|
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(4)
|
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
|
(5)
|
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i)
|
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii)
|
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
(iii)
|
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
(iv)
|
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
|
| |
SOUTH PLAINS FINANCIAL, INC.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Curtis C. Griffith
|
|
| |
|
| |
Curtis C. Griffith
|
|
| |
|
| |
Chairman and Chief Executive Officer
|
Name
|
| |
Title
|
| |
Date
|
| ||
/s/ Curtis C. Griffith
|
| |
Director (Chairman); Chief Executive
Officer (principal executive officer)
|
| |
November 12, 2020
|
|||
Curtis C. Griffith
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Cory T. Newsom
|
| |
Director and President
|
| |
November 12, 2020
|
| ||
Cory T. Newsom
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Steven B. Crockett
|
| |
Chief Financial Officer and Treasurer
(principal financial and accounting officer)
|
| |
November 12, 2020
|
| ||
Steven B. Crockett
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Richard D. Campbell
|
| |
Director
|
| |
November 12, 2020
|
| ||
Richard D. Campbell
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Cynthia B. Keith
|
| |
Director
|
| |
November 12, 2020
|
| ||
Cynthia B. Keith
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Allison S. Navitskas
|
| |
Director
|
| |
November 12, 2020
|
| ||
Allison S. Navitskas
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Noe G. Valles
|
| |
Director
|
| |
November 12, 2020
|
| ||
Noe G. Valles
|
| ||||||||
|
| |
|
| |
|
| ||
/s/ Kyle R. Wargo
|
| |
Director
|
| |
November 12, 2020
|
| ||
Kyle R. Wargo
|
|
|
HUNTON ANDREWS KURTH LLP
FOUNTAIN PLACE
1445 ROSS AVENUE
SUITE 3700
DALLAS, TEXAS 75202-2799
TEL 214 • 979 • 3000
FAX 214 • 880 • 0011
|
(a)
|
the Registration Statement;
|
(b)
|
the Indenture dated as of September 29, 2020 (the “Indenture”) by and between the Company and UMB Bank, National Association, as trustee (the “Trustee”);
|
(c)
|
the form of the Exchange Notes attached as an exhibit to the Indenture; and
|
(d)
|
the Registration Rights Agreement, dated as of September 29, 2020 (the “Registration Rights Agreement”) among the Company and the purchasers party thereto.
|
Very truly yours,
|
|
/s/ Hunton Andrews Kurth LLP
|
1010 Grand Blvd.
Kansas City, Missouri
|
64106 |
(Address of principal executive offices)
|
(Zip Code)
|
Texas
|
75-2453320
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
5219 City Bank Parkway
Lubbock, Texas
|
79407
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
|
a) |
Name and address of each examining or supervising authority to which it is subject.
|
|
b) |
Whether it is authorized to exercise corporate trust powers.
|
Items 3-15 |
Items 3-15 are not applicable because, to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
|
|
1. |
A copy of the Articles of Association of the Trustee (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-74008).
|
|
2. |
Certificate of Authority from the Comptroller of the Currency evidencing a change of the corporate title of the Association (Exhibit 2 to Form T-1 filed with
Registration Statement No. 333-74008).
|
|
3. |
Certificate from the Comptroller of the Currency evidencing authority to exercise corporate trust powers and a letter evidencing a change of the corporate title of
the Association (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-74008).
|
|
4. |
Bylaws, as amended of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-74008).
|
|
5. |
A copy of each Indenture referred to in Item 4, if the obligor is in default. Not applicable.
|
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Registration Statement No. 333-74008).
|
|
7. |
Report of Condition of the Trustee as of September 30, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as
Exhibit 7.
|
|
8. |
A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not
applicable.
|
|
9. |
Foreign trustees are required to file a consent to serve of process of Form F-X [§269.5 of this chapter]. Not applicable.
|
By:
|
/s/ Mauri J. Cowen
|
|
|
Mauri J. Cowen
|
|
Sr. Vice President
|
•
|
deliver such Old Notes to the Issuer and deliver all accompanying evidences of transfer and authenticity; and
|
•
|
present such Old Notes for transfer on the books of the Issuer and receive all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offer.
|
•
|
the undersigned cannot rely on the position of the staff of the SEC set forth in the Prior No-Action Letters and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction of the New Notes, in which case the registration statement must contain the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K promulgated by the SEC; and
|
•
|
failure to comply with such requirements in such instance could result in the undersigned incurring liability for which the undersigned is not indemnified by the Issuer.
|