As filed with the Securities and Exchange Commission on March 19, 2018
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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Patrick A. Burrow,
Executive Vice President,
General Counsel and Secretary
Simmons First National Corporation
425 W. Capitol Avenue, Suite 1400
Little Rock, Arkansas 72201
(501) 558-3160
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Frank M. Conner III
Michael P. Reed
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 ☑
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Accelerated filer ☐
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Non-accelerated filer ☐ (Do not check if a smaller reporting company)
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Small reporting company ☐
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of 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 5 of this prospectus and contained in our Annual Report on Form 10-K for the year ended December 31, 2017, 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 19, 2018.
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. You may also read and copy any document we file at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
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, 2017, filed with the SEC on February 28, 2018 (including the portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 14, 2018, incorporated by reference therein);
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our Current Reports on Form 8-K filed on January 18, 2018, January 26, 2018, February 7, 2018 and March 19, 2018; and
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the description of our common stock contained in our prospectus filed pursuant to Rule 424(b)(3) under the Securities Act on September 12, 2017 set forth under the heading “Description of Capital Stock of Simmons,” as updated and amended from time to time.
In addition, the audited consolidated statements of financial condition of Southwest Bancorp, Inc. (“OKSB”) as of December 31, 2016 and 2015, and the related audited consolidated statements of operations, comprehensive income, cash flows and shareholders’ equity for each of the three years ended December 31, 2016, and the related notes and report of independent auditors thereto, are incorporated by reference to OKSB’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-34110), which was filed with the SEC on March 9, 2017.
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, 501 Main Street, P.O. Box 7009, Pine Bluff, Arkansas 71611, Attention: David Garner, (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
Certain statements included or incorporated by reference in this prospectus and each prospectus supplement may not be based on historical facts and are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. 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,” “estimate,” “expect,” “foresee,” “believe,” “may,” “might,” “will,” “would,” “could” or “intend,” future or conditional verb tenses, and variations or negatives of such terms.
These forward-looking statements include, without limitation, those relating to our future growth, revenue, assets, asset quality, profitability and customer service, critical accounting policies, net interest margin, non-interest revenue, market conditions related to our stock repurchase program, allowance for loan losses, the effect of certain new accounting standards on our financial statements, 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, earnings, the effect of pending litigation, acquisition strategy, efficiency initiatives, 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 or expansion strategy or our ability to successfully execute such strategy, the effects of future economic conditions, governmental monetary and fiscal policies, as well as legislative and regulatory changes; the risks of changes in interest rates and their effects on the level and composition of deposits, loan demand and the values of loan collateral, securities and interest sensitive assets and liabilities; the costs of evaluating possible acquisitions and the risks inherent in integrating acquisitions; 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 loan losses, fair value for covered loans, covered other real estate owned and FDIC indemnification asset; and those factors set forth under Item 1A. Risk Factors of our Annual Report on Form 10-K for the year ended December 31, 2017, and other cautionary statements set forth elsewhere in this prospectus. Many of these factors are beyond our ability to predict or control. 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 expectations 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 and you should not place undue reliance on these forward-looking statements. 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, 2017, had, on a consolidated basis, total assets of approximately $15.1 billion, total net loans of approximately $10.7 billion, total deposits of approximately $11.1 billion and stockholders’ equity of approximately $2.1 billion. We conduct our banking operations through our subsidiary banks, Simmons Bank (lead) and Bank SNB through approximately 200 financial centers located in communities in Arkansas, Colorado, Kansas, Missouri, Oklahoma, Tennessee and Texas.
We are committed to the community bank model as we believe it encourages local customer engagement and local decision making, thereby producing a more responsive and satisfactory experience for our customers. We also believe our model empowers our bankers to enhance shareholder value through developing and growing holistic customer relationships. 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 in addition to those offered by the typical community bank and that are provided in many 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 (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 acquisitions of 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, 2017, 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.
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to fixed charges (from continuing operations) and earnings to fixed charges and preferred stock dividends for each of the five fiscal years ended December 31, 2017, 2016, 2015, 2014 and 2013 are as follows:
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Year Ended December 31,
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2017
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2016
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2015
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2014
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2013
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Ratio of earnings to fixed charges
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Excluding interest on deposits
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11.41x
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17.14x
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12.54x
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8.67x
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7.35x
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Including interest on deposits
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4.63x
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6.95x
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5.36x
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4.22x
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3.41x
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Ratio of earnings to fixed charges and preferred stock dividends
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Excluding interest on deposits
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11.41x
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17.07x
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11.99x
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8.67x
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7.35x
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Including interest on deposits
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4.63x
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6.94x
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5.27x
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4.22x
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3.41x
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For purposes of computing the ratios, earnings represent the sum of income from continuing operations before taxes plus fixed charges. Fixed charges represent total interest expense, including estimated interest on rental expense, and including and excluding interest on deposits.
On January 29, 2016, we redeemed 30,852 shares of our Senior Non-Cumulative Perpetual Preferred Stock, Series A, or Series A Preferred Stock, which we issued on February 27, 2015 in connection with our acquisition of Community First Bancshares, Inc. The Series A Preferred Stock was issued in exchange for the outstanding shares of Community First Senior Non-Cumulative Perpetual Preferred Stock, Series C, which was held by the United States Department of Treasury pursuant to Community First’s participation in the Small Business Lending Fund.
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 Articles of Restatement of the Articles of Incorporation, which we refer to as our Articles of Incorporation, and our By-Laws, which we refer to as 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
On January 18, 2018, our board of directors approved a two-for-one stock split of our common stock in the form of a 100% stock dividend for shareholders of record as of the close of business on January 30, 2018. The new shares were distributed by our transfer agent, Computershare, and our common stock began trading on a split-adjusted basis on the Nasdaq Global Select Market on February 9, 2018.
As of the date of this prospectus, we were authorized to issue 120,000,000 shares of our common stock. As of March 9, 2018, there were 92,251,562 shares of our common stock issued and outstanding. On March 9, approximately 625,078 shares of our common stock were issuable upon exercise of outstanding stock options and approximately 1,482,315 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. 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.
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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current market price of our common stock and its consolidated assets;
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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 a 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. None of our preferred stock is 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:
•
the number of shares constituting that series and the distinctive designation of that series;
•
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;
•
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;
•
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;
•
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;
•
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
•
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. The debt securities will be issued under one or more separate indentures between us and Wilmington Trust, National Association, as trustee. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under a subordinated indenture. 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:
•
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;
•
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;
•
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;
•
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:
•
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;
•
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
•
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;
•
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;
•
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 123
rd
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 123
rd
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 both the senior indenture and subordinated indenture will be 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; Governing Law
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. Unless otherwise stated in the applicable prospectus supplement, each issue of warrants and the applicable warrant agreement will be governed by the laws of the State of Arkansas.
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 Patrick A. Burrow, our Executive Vice President, General Counsel and Secretary, 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. As of March 9, 2018, Mr. Burrow held 39,510 shares of our common stock and held options to purchase up to 41,450 shares of our common stock, and he is eligible to receive additional equity incentive awards in the future.
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, 2017 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.
The audited annual consolidated financial statements of OKSB as of and for the years ended December 31, 2016 and 2015 incorporated in this prospectus by reference to OKSB’s Annual Report on Form 10-K for the year ended December 31, 2016 and the effectiveness of OKSB’s 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 dated March 9, 2017, which are incorporated herein by reference. The audited annual consolidated financial statements of OKSB for the year ended December 31, 2014 incorporated in this prospectus by reference to OKSB’s Annual Report on Form 10-K for the year ended December 31, 2016 have been audited by Ernst & Young, LLP, an independent registered public accounting firm, as set forth in its report included therein dated March 10, 2015. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firms as experts in auditing and accounting.
The audited consolidated financial statements of First Texas BHC, Inc. (“First Texas”) as of and for the three years ended December 31, 2016 incorporated in this prospectus by reference to our Current Report on Form 8-K filed with the SEC on March 19, 2018 have been audited by Payne and Smith, LLC, independent auditors, as stated in its report dated March 13, 2017, which is incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in auditing and accounting.
With respect to the unaudited interim consolidated financial information of First Texas for the quarter ended September 30, 2017 incorporated in this prospectus by reference to our Current Report on Form 8-K filed with the SEC on March 19, 2018, Payne and Smith, LLC has applied limited procedures in accordance with professional standards for review of such information. However, as stated in its separate report included therein, it did not audit and it does not express an opinion on that interim financial information. Because of the limited nature of the review procedures applied, the degree of reliance on its report on such information should be restricted. Pursuant to Rule 436(c) under the Securities Act, this report on First Texas’ unaudited interim consolidated financial information should not be considered a part of the registration statement prepared or certified by its independent registered public accounting firm within the meaning of Sections 7 and 11 of the Securities Act.
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 the Arkansas Business Corporation Act of 1987, as amended, or the 1987 Act. 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 the 1987 Act, 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 indemnification provisions are not intended to deny or otherwise limit third party or derivative suits against the Company or its directors or officers. However, to the extent a director or officer were entitled to indemnification, the financial burden of a third party suit would be borne by the Company, and the Company would not benefit from derivative recoveries since the amount of such recoveries would be repaid to the director or officer pursuant to the agreements.
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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1.1
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Form of Underwriting Agreement.*
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Articles of Restatement of the Restated Articles of Incorporation of Simmons First National Corporation (incorporated by reference to Exhibit 3.1 to Simmons First National Corporation’s Registration Statement on Form S-4 dated as of August 20, 2015 (File No. 333-206485)).
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By-Laws of Simmons First National Corporation (incorporated by reference to Exhibit 3.2 to Simmons First National Corporation’s Quarterly Report on Form 10-Q for the Quarter ended June 30, 2017 (File No. 000-06253)).
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Specimen Common Stock Certificate of Simmons First National Corporation (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to Simmons First National Corporation’s Registration Statement on Form S-3 filed on June 18, 2014 (File No. 333-194309))
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4.2
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Form of Preferred Stock Certificate.*
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Form of Senior Debt Indenture.
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Form of Subordinated Debt Indenture.
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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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Form of Subordinated Debt Security.*
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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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Opinion of Patrick A. Burrow, Executive Vice President, General Counsel and Secretary of Simmons First National Corporation.
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Opinion of Covington & Burling LLP.
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Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to Exhibit 12.1 to Simmons First National Corporation’s Quarterly Report on Form 10-K for the year ended December 31, 2017 (File No. 000-06253)).
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Awareness Letter of Payne & Smith, LLC with respect to the interim financial statements of First Texas BHC, Inc.
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Consent of BKD, LLP with respect to the audited financial statements of Simmons First National Corporation.
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Consent of BKD, LLP with respect to the audited financial statements of Southwest Bancorp, Inc.
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Consent of Ernst & Young LLP with respect to the audited financial statements of Southwest Bancorp, Inc.
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Consent of Payne and Smith, LLC with respect to the audited financial statements of First Texas BHC, Inc.
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Consent of Patrick A. Burrow, Executive Vice President, General Counsel and Secretary of Simmons First National Corporation (included in Exhibit 5.1).
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Consent of Covington & Burling LLP (included in Exhibit 5.2).
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Powers of attorney (included on the signature pages herewith).
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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.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form 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 19, 2018.
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SIMMONS FIRST NATIONAL CORPORATION
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By:
/s/ George A. Makris, Jr.
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Name:
George A. Makris, Jr.
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Title:
Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the persons whose signature appears below appoints and constitutes Patrick A. Burrow, Robert A. Fehlman and Marty D. Casteel, 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 19, 2018.
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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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Chief Executive Officer and
Chairman of the Board of Directors
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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 and Treasurer
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/s/ David W. Garner
David W. Garner
(Principal Accounting Officer)
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Executive Vice President, Controller 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/ 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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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/ Christopher R. Kirkland
Christopher R. Kirkland
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Director
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Signature
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Title
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/s/ Susan Lanigan
Susan 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/ Russell W. Teubner
Russell W. Teubner
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Director
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Malynda K. West
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Director
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Exhibit 4.3
SIMMONS FIRST NATIONAL CORPORATION,
AS ISSUER
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
AS TRUSTEE
SENIOR INDENTURE
DATED AS OF [________________, _______]
SENIOR DEBT SECURITIES
CROSS-REFERENCE TABLE
Reconciliation and tie between the Trust Indenture Act of 1939,
as amended (the “TIA”), and the Indenture dated as of __________, 2018.
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SECTION OF ACT
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SECTION OF INDENTURE
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310(a)(1) and (2)
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7.09
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310(a)(3) and (4)
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Not applicable
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310(a)(5)
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7.09
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310(b)
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7.08 and 7.10
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310(c)
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Not applicable
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311(a) and (b)
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7.13
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311(c)
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Not applicable
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312(a)
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5.01 and 5.02(a)
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312(b) and (c)
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5.02(b) and (c)
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313(a)
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5.04(a)
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313(b)(1)
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Not applicable
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313(b)(2)
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5.04(b)
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313(c)
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5.04(c)
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313(d)
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5.04(d)
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314(a)
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5.03
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314(b)
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Not applicable
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314(c)(1) and (2)
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14.04
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314(c)(3)
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Not applicable
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314(d)
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Not applicable
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314(e)
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15.05
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314(f)
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Not applicable
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315(a), (c) and (d)
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7.01
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315(b)
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7.14
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315(e)
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6.14
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316(a)(1)
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6.12
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316(a)(2)
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Omitted
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316(a) last sentence
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8.04
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316(b)
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6.08
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316(c)
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8.06
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317(a)
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6.03 and 6.04
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317(b)
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4.03(a)
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318(a)
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15.07
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Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA,
which provides that the provisions of Sections 310 to and including Section 317 of the TIA are a part of and govern every qualified
indenture, whether or not physically contained therein.
TABLE OF CONTENTS
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Page
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Article 1
DEFINITIONS
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1
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SECTION 1.01. Definitions
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1
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Article 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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6
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SECTION 2.01. Amount Unlimited; Issuable in Series
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6
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SECTION 2.02. Form of Trustee’s Certificate of Authentication
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7
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SECTION 2.03. Form of Securities Generally; Establishment of Terms of Series
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7
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SECTION 2.04. Securities in Global Form
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11
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SECTION 2.05. Denominations; Record Date; Payment of Interest
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11
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SECTION 2.06. Execution, Authentication, Delivery and Dating of Securities
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12
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SECTION 2.07. Exchange and Registration of Transfer of Securities
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14
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SECTION 2.08. Temporary Securities
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17
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SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities and Coupons
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18
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SECTION 2.10. Cancellation
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19
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SECTION 2.11. Book Entry Only System
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19
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Article 3
REDEMPTION OF SECURITIES
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20
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SECTION 3.01. Redemption of Securities, Applicability of Section
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20
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SECTION 3.02. Notice of Redemption, Selection of Securities
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20
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SECTION 3.03. Payment of Securities Called for Redemption
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21
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SECTION 3.04. Redemption Suspended During Event of Default
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22
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Article 4
PARTICULAR COVENANTS OF THE COMPANY
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23
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SECTION 4.01. Payment of Principal, Premium and Interest
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23
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SECTION 4.02. Offices for Notices and Payments, etc.
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23
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SECTION 4.03. Provisions as to Paying Agent
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24
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SECTION 4.04. Statement as to Compliance
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25
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SECTION 4.05. Corporate Existence
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26
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SECTION 4.06. Ownership of Material Subsidiary Stock
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26
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SECTION 4.07. Waiver of Covenants
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27
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Article 5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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27
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SECTION 5.01. Securityholder Lists
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27
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SECTION 5.02. Preservation and Disclosure of Lists
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28
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SECTION 5.03. Reports by the Company
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28
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SECTION 5.04. Reports by the Trustee
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29
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Article 6
REMEDIES
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29
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SECTION 6.01. Events of Default; Acceleration of Maturity
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29
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SECTION 6.02. Rescission and Annulment
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30
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SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee
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31
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SECTION 6.04. Trustee May File Proofs of Claim
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32
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SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities or Coupons
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33
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SECTION 6.06. Application of Money Collected
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33
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SECTION 6.07. Limitation on Suits
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33
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SECTION 6.08. Unconditional Right of Securityholders to Receive Principal and Interest
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34
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SECTION 6.09. Restoration of Rights and Remedies
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34
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SECTION 6.10. Rights and Remedies Cumulative
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34
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SECTION 6.11. Delay or Omission Not Waiver
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35
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SECTION 6.12. Control by Securityholders
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35
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SECTION 6.13. Waiver of Past Defaults
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35
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SECTION 6.14. Undertaking for Costs
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36
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SECTION 6.15. Waiver of Stay or Extension Laws
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36
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Article 7
CONCERNING THE TRUSTEE
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36
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SECTION 7.01. Duties and Responsibilities of Trustee
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36
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SECTION 7.02. Reliance on Documents, Opinions, etc.
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37
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SECTION 7.03. No Responsibility for Recitals, etc.
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39
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SECTION 7.04. Ownership of Securities
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39
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SECTION 7.05. Moneys to be Held in Trust
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39
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SECTION 7.06. Compensation and Expenses of Trustee
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39
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SECTION 7.07. Officer’s Certificate as Evidence
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40
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SECTION 7.08. Disqualifications; Conflicting Interest of Trustee
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40
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SECTION 7.09. Eligibility of Trustee
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41
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SECTION 7.10. Resignation or Removal of Trustee
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41
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SECTION 7.11. Acceptance by Successor Trustee
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42
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SECTION 7.12. Successor by Merger, etc.
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43
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SECTION 7.13. Limitations on Rights of Trustee as Creditor
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43
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SECTION 7.14. Notice of Default
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43
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SECTION 7.15. Appointment of Authenticating Agent
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44
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Article 8
CONCERNING THE SECURITYHOLDERS
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45
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SECTION 8.01. Action by Securityholders
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45
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SECTION 8.02. Proof of Execution by Securityholders
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46
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SECTION 8.03. Who Are Deemed Absolute Owners
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46
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SECTION 8.04. Company-Owned Securities Disregarded
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47
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SECTION 8.05. Revocation of Consents; Future Securityholders Bound
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47
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SECTION 8.06. Record Date
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48
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Article 9
SECURITYHOLDERS’ MEETINGS
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48
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SECTION 9.01. Purposes of Meeting
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48
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SECTION 9.02. Call of Meetings by Trustee
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48
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SECTION 9.03. Call of Meetings by Company or Securityholders
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49
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SECTION 9.04. Qualifications for Voting
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49
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SECTION 9.05. Regulations
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49
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SECTION 9.06. Voting
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50
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Article 10
SUPPLEMENTAL INDENTURES
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50
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SECTION 10.01. Supplemental Indentures without Consent of Securityholders
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50
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SECTION 10.02. Supplemental Indentures with Consent of Holders
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52
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SECTION 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures
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53
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SECTION 10.04. Notation on Securities
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53
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Article 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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53
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SECTION 11.01. Company May Consolidate, etc., on Certain Terms
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53
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SECTION 11.02. Successor Corporation Substituted
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54
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SECTION 11.03. Opinion of Counsel and Officer’s Certificate to be Given Trustee
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54
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Article 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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54
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SECTION 12.01. Discharge of Indenture
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54
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SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee
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55
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SECTION 12.03. Paying Agent to Repay Moneys Held
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55
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SECTION 12.04. Return of Unclaimed Moneys
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56
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Article 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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56
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SECTION 13.01. Indenture and Securities Solely Corporate Obligations
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56
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Article 14
DEFEASANCE AND COVENANT DEFEASANCE
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56
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SECTION 14.01. Applicability of Article
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56
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SECTION 14.02. Defeasance and Discharge
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57
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SECTION 14.03. Covenant Defeasance
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57
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SECTION 14.04. Conditions to Defeasance or Covenant Defeasance
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57
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SECTION 14.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
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59
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Article 15
MISCELLANEOUS PROVISIONS
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60
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SECTION 15.01. Benefits of Indenture Restricted to Parties and Securityholders
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60
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SECTION 15.02. Provisions Binding on Company’s Successors
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60
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SECTION 15.03. Addresses for Notices, etc., to Company and Trustee
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60
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SECTION 15.04. Notice to Holders of Securities; Waiver
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60
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SECTION 15.05. Evidence of Compliance with Conditions Precedent
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61
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SECTION 15.06. Legal Holidays
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62
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SECTION 15.07. Trust Indenture Act to Control
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62
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SECTION 15.08. Execution in Counterparts
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62
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SECTION 15.09. Governing Law; Waiver of Jury Trial
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62
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SECTION 15.10. Severability
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62
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SECTION 15.11. Interpretations
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63
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SECTION 15.12. U.S.A. Patriot Act
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63
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SECTION 15.13. Force Majeure
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63
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SECTION 15.14. Jurisdiction
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63
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Article 16
RANKING OF SECURITIES
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64
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SECTION 16.01. Ranking
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64
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THIS INDENTURE, dated as of [_____________,______]
between Simmons First National Corporation, a corporation duly organized and existing under the laws of the State of Arkansas (the
“Company”), and Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee,”
which term shall include any successor trustee appointed pursuant to Article 7 of this Indenture).
WHEREAS, the Company deems it necessary to
issue from time to time for its lawful purposes securities (the “Securities”) evidencing its indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited
as to principal amount, to bear such rates of interest, to mature at such time or times, and to have such other provisions as shall
be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts
and things necessary to constitute these presents a valid indenture and agreement according to its terms have been done and performed,
and the execution of this Indenture has in all respects been duly authorized, and the Company, in the exercise of legal right and
power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions
upon which the Securities are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance
of the Securities by the holders thereof and of the sum of One Dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders from time to time of the Securities, as follows:
Article
1
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section (except
as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939 or that are by reference therein defined in the Securities Act of 1933 shall
have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms
in the Trust Indenture Act of 1939 or in the Securities Act of 1933, as applicable, in each case as in force at the date of this
Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with United States generally accepted accounting principles, and the term “generally accepted accounting
principles” means such accounting principles as are generally accepted at the time of any computation. The words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
“Additional Amounts” shall mean
any additional amounts to be paid by the Company in respect of Securities of a series, as may be specified pursuant to Section
2.03(b) hereof and in such Security and under the circumstances specified therein, in respect of specified taxes, assessments or
other governmental charges imposed on certain holders who are United States Aliens.
“Authorized Newspaper” shall mean
a newspaper (which, in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger Wort) of general circulation in the place of publication, published
in an official language of the country of publication and customarily published at least once a day for at least five days in each
calendar week. Whenever successive weekly publications in an Authorized Newspaper are authorized or required hereunder, they may
be made (unless otherwise provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.
“Authorized Officer” shall have
the meaning set forth in Section 3.02 hereof.
“Bearer Security” shall mean any
Security established pursuant to Section 2.01 and Section 2.03(b) hereof which is payable to bearer (including without limitation
any Security in temporary or permanent global bearer form) and title to which passes by delivery only, but does not include any
coupons.
“Board of Directors” or “Board”
shall mean the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” shall mean
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
or by a committee acting under authority of or appointment by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
“Business Day” shall mean, unless
otherwise specified pursuant to Section 2.03(b), with respect to any Place of Payment or any other particular location referred
to in this Indenture or in the Securities, a day that in the city (or in any one of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized or required by
law or regulation to be closed.
“Capital Stock” shall mean, as
to shares of a particular corporation, outstanding shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate
in dividends and in the distribution of assets upon the voluntary liquidation, dissolution or winding up of such corporation.
“Commission” shall mean the Securities
and Exchange Commission or any successor agency.
“Company” shall mean the person
named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request,” “Company
Order” and “Company Consent” mean, respectively, a written request, order or consent signed in the name of the
Company by its Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer and delivered to the Trustee.
“Corporate Trust Office” shall
mean the designated office of the Trustee at which, at any particular time, its corporate trust business relating to this Indenture
shall be administered, which office at the date hereof is located at 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Simmons First National Corporation Administrator, or such other address as the Trustee may designate from time to time by notice
to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Company).
“coupon” shall mean any interest
coupon appertaining to a Bearer Security.
“Default” or “default”
shall have the meaning specified in Article 6.
“Dollar” or “$” shall
mean a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
“Event of Default” shall have
the meaning specified in Article 6.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Exchange Date” shall have the
meaning set forth in Section 2.08.
“holder,” “holder of Securities,”
“securityholder” or other similar term shall mean (a) in the case of any Registered Security, the person in whose name
such Security is registered in the Security Register kept by the Company for that purpose, in accordance with the terms hereof,
and (b) in the case of any Bearer Security, the bearer thereof, and as used with respect to any coupon appertaining to any Bearer
Security, the term “holder” shall mean the bearer thereof.
“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 relating to the Company 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 of the Company, whether any such indebtedness exists as of the date of the Indenture or is
created, incurred or assumed after such date: (i) all obligations for borrowed money, (ii) all obligations evidenced by debentures,
Securities or other similar instruments, (iii) all obligations in respect of letters of credit or bankers acceptances or similar
instruments (or reimbursement obligations with respect thereto), (iv) all obligations to pay the deferred purchase price of property
or services, except trade accounts payable arising in the ordinary course of business, (v) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries is legally responsible or liable
(whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others), (vi) 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, (vii) obligations
associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity
contracts, and similar arrangements, (viii) purchase money and similar obligations, (ix) interest or obligations in respect of
any of the foregoing accruing after the commencement of insolvency or bankruptcy proceedings, and (x) any renewals, extensions,
refundings or replacements of any of the foregoing.
“Indenture” shall mean this instrument
as originally executed and delivered or as it may from time to time be supplemented or amended by one or more supplemental indentures
hereto entered into pursuant to the applicable provisions hereof, including without limitation, the forms and terms of particular
series of Securities established as contemplated by Article 2.
“Material Subsidiary” means Simmons
Bank, or any successor thereof or any Subsidiary of the Company that is a depository institution and that has consolidated assets
equal to 80% or more of the Company’s consolidated assets.
“Officer’s Certificate”
shall mean a certificate signed by the Chief Executive Officer, Chief Financial Officer, Assistant Secretary, Treasurer or Controller
of the Company and delivered to the Trustee.
“Opinion of Counsel” shall mean
an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall be reasonably
satisfactory to the Trustee, or who may be other counsel reasonably satisfactory to the Trustee.
“Original Issue Discount Securities”
shall mean any Securities that are initially sold at a discount from the principal amount thereof and that provide upon an Event
of Default for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“Outstanding” or “outstanding,”
when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated and held in trust by
the Company (if the Company shall act as its own paying agent) for the holders of such Securities and any coupons appertaining
thereto; provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving
such notice;
(c) Securities
that have been defeased pursuant to Section 14.02 hereof; and
(d) Securities
that have been paid pursuant to Section 2.09, or Securities in exchange for, in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is
presented that any such Securities are held by bona fide holders in due course.
“Periodic Offering” shall mean
an offering of Securities of a series, from time to time, the specific terms of which (including, without limitation, the rate
or rates of interest or formula for determining the rate or rates of interest thereon, if any, the maturity date or dates thereof
and the redemption provisions, if any, with respect thereto) are to be determined by the Company upon the issuance of such Securities.
“Person” or “person”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 4.02, the principal
of (and premium, if any, on) and any interest on the Securities of that series are payable as specified as contemplated by Section
2.03(b).
“Possessions,” when used with
respect to the United States, shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands.
“record date” as used with respect
to any interest payment date shall have the meaning specified in Section 2.05.
“Registered Security” shall mean
any Security established pursuant to Section 2.01 and Section 2.03(b) that is registered on the Security Register of the Company.
“Responsible Officer,” when used
with respect to the Trustee, shall mean any officer of the Trustee assigned to the global capital markets group (or any successor
group) of the Trustee located in its Corporate Trust Office and also shall mean, with respect to a particular corporate trust matter,
any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular
subject, in each case, who has direct responsibility for the administration of this Indenture.
“Securities” shall have the meaning
set forth in the preamble of this Indenture.
“Securities Act” shall mean the
Securities Act of 1933, as amended.
“Security Register” and “Security
Registrar” shall have the respective meanings set forth in Section 2.07(a) hereof.
“Subsidiary” shall mean, in respect
of any Person, any corporation, association, partnership, limited liability company or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or
(c) one or more Subsidiaries of such Person.
“Trust Indenture Act,” except
as otherwise provided in this Indenture, shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this
Indenture as originally executed.
“Trustee” shall mean the person
identified as “Trustee” in the first paragraph hereof until the acceptance of appointment of a successor trustee pursuant
to the provisions of Article 7, and thereafter shall mean such successor trustee.
“United States Alien” shall mean
any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership to the extent that one or more of its members is, for United
States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of
a foreign estate or trust
“U.S. Depositary” shall mean,
with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more permanent global
Securities, the person designated as U.S. Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency
registered under the Exchange Act, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “U.S. Depositary” shall mean or include each person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such person, “U.S. Depositary” as used with respect to the Securities
of any series shall mean the U.S. Depositary with respect to the Securities of such series.
“Vice President” when used with
respect to the Company or the Trustee shall mean any vice president, whether or not designated by a number or word or words added
before or after the title “vice president,” including any Executive or Senior Vice President.
“Voting Stock” means outstanding
shares of Capital Stock having voting power for the election of directors, whether at all times or only so long as no senior class
of stock has such voting power because of default in dividends or other default.
Article
2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable
in Series.
Upon the execution of this Indenture, or from
time to time thereafter, Securities up to the aggregate principal amount and containing terms and conditions from time to time
authorized by or pursuant to a Board Resolution, or in a supplemental indenture , as set forth in Section 2.03, may be executed
by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and make available
for delivery the Securities to or upon Company Order, without any further action by the Company but subject to the provisions of
Section 2.03, or in a supplemental indenture , as set forth in Section 2.03.
The Securities may be issued in one or more
series. The aggregate principal amount of Securities of all series that may be authenticated and delivered and outstanding under
this Indenture is not limited hereunder. The Securities of a particular series may be issued up to the aggregate principal amount
of Securities for such series from time to time authorized by or pursuant to a Board Resolution.
SECTION 2.02. Form of Trustee’s
Certificate of Authentication.
The Trustee’s certificate of authentication
shall be in substantially the following form:
Trustee’s Certificate of Authentication
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
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Dated:
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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as Trustee
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By: Authorized Signatory
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SECTION 2.03. Form of Securities Generally;
Establishment of Terms of Series.
(a) The
Registered Securities, if any, of each series, the Bearer Securities, if any, of each series and related coupons, if any, the temporary
global Securities of each series, if any, and the permanent global Securities of each series, if any, shall be in the forms established
from time to time in or pursuant to one or more Board Resolutions (and, to the extent established pursuant to rather than set forth
in one or more Board Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the
relevant Board Resolution(s)) detailing such establishment) or established in an indenture supplemental hereto.
The Securities may be issued in typewritten,
printed or engraved form with such letters, numbers or other marks of identification or designation (including “CUSIP”
numbers, if then generally in use) and such legends or endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities
may be listed, or to conform to usage. Unless otherwise specified as contemplated hereinafter, Securities in bearer form shall
have interest coupons attached.
(b) At
or prior to the initial issuance of Securities of any series, the particular terms of Securities of such series shall be established
in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in one or more
Board Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the relevant Board
Resolutions(s)) detailing such establishment) or established in a supplemental indenture, including the following:
(1) the
designation of the particular series (which shall distinguish such series from all other series);
(2) the
price or prices (which may be expressed as a percentage of the aggregate principal amount of the Securities being issued) at which
the Securities of the series will be issued;
(3) the
aggregate principal amount of such series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to this Indenture and except for any Securities which, pursuant to Section 2.06, are deemed never to have been authenticated
and delivered hereunder);
(4) whether
Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, whether
any Securities of the series are to be issuable initially in temporary global form with or without coupons and, if so, the name
of the U.S. Depositary with respect to any such temporary global Security, and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.06 and the name of
the U.S. Depositary with respect to any such permanent global Security;
(5) the
date as of which any Bearer Securities of such series and any temporary Security in global form representing Outstanding Securities
of such series shall be dated, if other than the date of original issuance of the first Securities of the series to be issued;
(6) the
person to whom any interest on any Registered Security of the series shall be payable, if other than the person in whose name that
Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest,
the manner in which, or the person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as they severally mature, the extent to which, or the manner
in which, any interest payable on a temporary global Security on an interest payment date will be paid if other than in the manner
provided in Section 2.08 and the extent to which, or the manner in which, any interest payable on a permanent global Security on
an interest payment date will be paid;
(7) the
date or dates on which the principal of the Securities of such series is payable;
(8) the
rate or rates, and if applicable the method used to determine the rate, at which the 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 Registered Securities on any interest payment date;
(9) the
place or places at which, subject to the provisions of Section 4.02, the principal of (and premium, if any, on) and any interest
on Securities of such series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(10) the
obligation, if any, of the Company to redeem or purchase 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 Securities of the series may be so redeemed or purchased, in whole or
in part;
(11) if
other than minimum denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities
of such series shall be issuable, and the denomination or denominations in which any Bearer Securities of the series shall be issuable,
if other than the minimum denomination of $5,000;
(12) if
other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable
upon declaration of acceleration of the maturity thereof;
(13) the
currency, currencies or currency units in which payment of the principal of (and premium, if any, on) and any interest on any Securities
of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section
1.01;
(14) if
the principal of (and premium, if any, on) or any interest on the Securities of the series are to be payable, at the election of
the Company or a holder thereof, in one or more currencies or currency units, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any, on) and any interest
on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(15) if
the amount of payments of principal of (and premium, if any, on) or any interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be determined;
(16) whether
the Securities will be issued in book-entry only form;
(17) any
interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(18) if
either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(19) whether
and under what circumstances the Company will pay Additional Amounts in respect of any series of Securities and whether the Company
has the option to redeem such Securities rather than pay such Additional Amounts;
(20) any
provisions relating to the extension of maturity of, or the renewal of, Securities of such series, or the conversion of Securities
of such series into other securities of the Company;
(21) any
provisions relating to the purchase or redemption of all or any portion of a tranche or series of Securities, including the period
of notice required to redeem those Securities;
(22) the
terms and conditions, if any, pursuant to which the Securities of the series are secured;
(23) the
subordination terms of the Securities of the series; and
(24) any
other terms of the Securities or provisions relating to the payment of principal of, premium (if any), or interest thereon, including,
but not limited to, whether such Securities are issuable at a discount or premium, as amortizable Securities, and if payable in,
convertible or exchangeable for commodities or for the securities of the Company or any third party.
All Securities of any one series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to the Board Resolution or Officer’s Certificate referred to above or as set forth in an supplemental indenture,
and, unless otherwise provided, the authorized principal amount of any series may be increased to provide for issuances of additional
Securities of such series. If so provided by or pursuant to the Board Resolution or Officer’s Certificate or supplemental
indenture referred to above, the terms of such Securities to be issued from time to time may be determined as set forth in such
Board Resolution, Officer’s Certificate or supplemental indenture, as the case may be. All Securities of any one series shall
be substantially identical except as to denomination, interest rate, maturity and other similar terms and except as may be provided
otherwise by or pursuant to such Board Resolution, Officer’s Certificate or supplemental indenture.
SECTION 2.04. Securities in Global Form.
If Securities of a series are issuable in
global form, as specified as contemplated by Section 2.03(b), then, notwithstanding clause (10) of Section 2.03(b) and the provisions
of Section 2.05, any such Security in global form shall represent such of the Securities of such series Outstanding as shall be
specified therein, and any such Security in global form may provide that it shall represent the aggregate amount of Securities
Outstanding from time to time endorsed thereon and that the aggregate amount of Securities Outstanding represented thereby may
from time to time be reduced to reflect any exchanges of beneficial interests in such Security in global form for Securities of
such series as contemplated herein. Any endorsement of a Security in global form to reflect the amount, or any decrease in the
amount, of Securities Outstanding represented thereby shall be made by the Trustee or the Security Registrar in such manner and
upon instructions given by such person or persons as shall be specified in such Security in global form or in the Company Order
to be delivered to the Trustee pursuant to Section 2.06 or Section 2.08. Subject to the provisions of Section 2.06 and, if applicable,
Section 2.08, the Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the person or persons specified in such Security in global form or in the applicable Company Order.
If a Company Order pursuant to Section 2.06 or Section 2.08 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not be
represented by a Company Order and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section
2.06 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions
(which need not be represented by a Company Order and need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence
of Section 2.06.
Notwithstanding the provisions of Section
2.05, unless otherwise specified as contemplated by Section 2.03(b), payment of principal of and any premium and interest on any
Security in permanent global form shall be made to the persons or persons specified therein.
SECTION 2.05. Denominations; Record Date;
Payment of Interest.
(a) Unless
otherwise provided as contemplated by Section 2.03(b) with respect to any series of Securities, any Registered Securities of a
series shall be issuable without coupons in minimum denominations of $1,000 and any Bearer Securities of a series shall be issuable,
with interest coupons attached, in the minimum denomination of $5,000.
(b) The
term “record date” as used with respect to an interest payment date for any series of a Registered Security shall mean
such day or days as shall be specified as contemplated by Section 2.03(b); provided, that in the absence of any such provisions
with respect to any series, such term shall mean (1) the last day of the calendar month next preceding such interest payment date
if such interest payment date is the 15th day of a calendar month; or (2) the 15th day of a calendar month next preceding such
interest payment date if such interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated
by Section 2.03 with respect to any series of Securities, the person in whose name any Registered Security is registered at the
close of business on the record date with respect to an interest payment date shall be entitled to receive the interest payable
on such interest payment date notwithstanding the cancellation of such Security upon any registration of transfer or exchange thereof
subsequent to such record date prior to such interest payment date; provided, that if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose
names the Securities are registered on a subsequent record date established by notice given to the extent and in the manner set
forth in Section 15.04 by or on behalf of the Company to the holders of Securities of the series in default not less than 15 days
preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted
interest, or in any other lawful manner acceptable to the Trustee.
(c) Unless
otherwise specified by Board Resolution or Company Order for a particular series of Securities, the principal of, redemption premium,
if any, on and interest, if any, on the Securities of any series shall be payable at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series, in the coin or currency of the United States of America that at
the time is legal tender for public and private debt; provided, that, at the option of the Company, payment of interest with respect
to a Registered Security may be paid by check mailed to the holders of the Registered Securities entitled thereto at their last
addresses as they appear on the Security Register or wired if held in book-entry form at the U.S. Depositary.
SECTION 2.06. Execution, Authentication,
Delivery and Dating of Securities
The Securities shall be signed on behalf of
the Company by its Chief Executive Officer, its President or one of its Vice Presidents. Such signatures may be the manual or facsimile
signatures of such then current officers.
Coupons shall bear the facsimile signature
of the Secretary or one of the Assistant Secretaries of the Company or such other officer of the Company as may be specified pursuant
to Section 2.03(b). Any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture
any such person was not such officer. Securities and coupons bearing the manual or facsimile signatures of individuals who were,
at the actual date of the execution of such Security or coupon, the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities,
or the delivery of such coupons, as the case may be, or did not hold such offices at the date of such Securities.
Upon the execution and delivery of this Indenture,
the Company shall deliver to the Trustee an Officer’s Certificate as to the incumbency and specimen signatures of officers
authorized to execute and deliver the Securities and coupons and give instructions under this Section and, as long as Securities
are Outstanding under this Indenture, shall deliver a similar Officer’s Certificate each year on the anniversary of the date
of the first such Officer’s Certificate. The Trustee may conclusively rely on the documents delivered pursuant to this Section
(unless revoked by superseding comparable documents) and Section 2.03 hereof as to the authorization of the Board of Directors
of any Securities delivered hereunder, and the form and terms thereof, and as to the authority of the instructing officers referred
to in this Section so to act.
The Trustee shall at any time, and from time
to time, authenticate Securities for original issue in an unlimited aggregate principal amount upon receipt by the Trustee of a
Company Order; provided, that with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order may
be delivered to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount, if any, established for such series, pursuant to a Company Order or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by a Company Order and (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by Company
Order or pursuant to such procedures. Except as permitted by Section 2.09, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any
new series and any related coupons, and the authentication thereof by the Trustee, the Trustee shall have received and (subject
to Section 7.02) shall be fully protected in relying on:
(a) The
Board Resolution or Officer’s Certificate or supplemental indenture establishing the terms and the form of the Securities
of that series pursuant to Section 2.01 and Section 2.03;
(b) An
Officer’s Certificate stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities in such form have been complied with;
(c) An
Opinion of Counsel stating that the form and terms of such Securities and coupons, if any, have been established in conformity
with the provisions of this Indenture; provided, that with respect to Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication of Securities
of such series.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms
thereof and of any coupons and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
other documents delivered pursuant to this Section in connection with the first authentication of Securities of such series unless
and until such Opinion of Counsel or other documents have been superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s
instructions to authenticate and deliver such Securities do not violate any rules, regulations or orders of any governmental agency
or commission having jurisdiction over the Company.
Each Registered Security shall be dated the
date of its authentication except as otherwise provided by Board Resolution or Officer’s Certificate or supplemental indenture;
and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued unless
otherwise specified pursuant to Section 2.03 hereof.
The aggregate principal amount of Securities
of any series outstanding at any time may not exceed any limit upon the maximum principal amount for such series set forth in or
pursuant to the Board Resolution or Officer’s Certificate or supplemental indenture delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security or coupon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security
to which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.09 together with a written statement stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration
of Transfer of Securities.
(a) The
Company shall keep, at an office or agency to be designated and maintained by the Company in accordance with Section 4.02 (as such,
a “Security Registrar”), registry books (the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register Registered Securities and shall register the transfer of Registered
Securities of each such series as provided in this Article 2. Such Security Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all reasonable times such Security Register shall be
open for inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of a particular
series at such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, the Company shall execute
and register and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a
new Registered Security or Registered Securities of such series of any authorized denominations and for an equal aggregate principal
amount and tenor.
(b) At
the option of the holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series
of any authorized denominations and of an equal aggregate principal amount and tenor. Registered Securities to be exchanged shall
be surrendered at any such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, and the
Company shall execute and register and the Trustee shall authenticate and make available for delivery in exchange therefor the
Security or Securities that the securityholder making the exchange shall be entitled to receive. Registered Securities, including
Registered Securities received in exchange for Bearer Securities, may not be exchanged for Bearer Securities, unless the Company
otherwise expressly provides for the issuance, upon such terms and conditions as may be provided with respect to such series, by
the Company of Registered Securities of a series that may be exchanged, at the option of the securityholder upon such conditions
and limitations as may be specified by the Company, for Bearer Securities of such series.
At the option of the holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons (except as provided below) and with all matured coupons in default appertaining thereto. If the holder of a Bearer Security
is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require to save each of them and any paying agent harmless.
If thereafter the holder of such Securities shall surrender to any paying agent any such missing coupon in respect of which such
a payment shall have been made, such holder shall be entitled to receive the amount of such payment; provided, that, except as
otherwise provided in Section 4.02, interest represented by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States and its possessions. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series
and like tenor after the close of business at such office or agency on (i) any record date and before the opening of business at
such office or agency on the relevant interest payment date, or (ii) any special record date and before the opening of business
at such office or agency on the related proposed date for payment of defaulted interest as set forth in Section 2.05, such Bearer
Security shall be surrendered without the coupon relating to such interest payment date or proposed date for payment, as the case
may be, and interest or defaulted interest, as the case may be, will not be payable on such interest payment date or proposed date
for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered
for exchange, the Company shall execute and register, and the Trustee shall authenticate and make available for delivery, the Securities
which the holder making the exchange is entitled to receive.
(c) All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
All Registered Securities presented for registration
of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the Company or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Security Registrar duly executed by, the holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith, other than exchanges pursuant to the terms of this Indenture not involving
any transfer.
The Company shall not be required (1) to exchange
or register the transfer of Securities of any series to be redeemed for a period of 15 days next preceding any selection of such
Securities to be redeemed, or (2) to exchange or register the transfer of any Registered Security so selected, called or being
called for redemption, except in the case of any such series to be redeemed in part the portion thereof not to be so redeemed,
or (3) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and of like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
(d) Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 2.03(b), any permanent global Security shall be exchangeable
pursuant to this Section only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security
are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 2.03(b), then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee or the Security Registrar
definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent global Security
executed by the Company. On or after the earliest date on which such interests may be so exchanged, in accordance with instructions
given by the Company to the Trustee or the Security Registrar and the U.S. Depositary (which instructions shall be in writing),
such permanent global Security shall be surrendered from time to time by the U.S. Depositary, or such other depositary or U.S.
Depositary, as the case may be, as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s
agent for such purpose, or to the Security Registrar, to be exchanged, in whole or in part, for definitive Securities of the same
series without charge and the Trustee shall authenticate and make available for delivery in accordance with such instructions,
in exchange for each portion of such permanent global Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which
(unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the permanent global Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.03(b)), shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner thereof; provided, that no such exchanges may occur for
a period of 15 days next preceding any selection of Securities of that series and of like tenor for redemption; and provided, further,
that no Bearer Security delivered in exchange for a portion of a permanent global security shall be mailed or otherwise delivered
to any location in the United States or its possessions. Promptly following any such exchange in part, such permanent global Security
should be returned by the Trustee or the Security Registrar to the U.S. Depositary, or such other depositary or U.S. Depositary
referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on
(i) any record date and before the opening of business at such office or agency on the relevant interest payment date, or (ii)
any special record date and before the opening of business at such office or agency on the related proposed date for payment of
defaulted interest as provided in Section 2.05, interest or defaulted interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable
on such interest payment date or proposed date for payment, as the case may be, only to the person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
SECTION 2.08. Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall, upon Company Order, authenticate and make available for delivery,
temporary Securities of such series (typewritten, printed, lithographed or otherwise produced). Such temporary Securities, in any
authorized denominations, shall be substantially in the form of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more or without coupons, in the form approved from time to time by
or pursuant to a Board Resolution but with such omissions, insertions, substitutions and other variations as may be appropriate
for temporary Securities, all as may be determined by the Company, but not inconsistent with the terms of this Indenture or any
provision of applicable law. In the case of any series issuable as Bearer Securities, such temporary Securities shall be delivered
only in compliance with the conditions set forth in Section 2.06 and may be in global form.
Except in the case of temporary Securities
in global form (which shall be exchanged as hereinafter provided), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section
4.02 in a Place of Payment for such series for the purpose of exchanges of Securities of such series, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of like tenor of authorized denominations; provided,
that, except as otherwise expressly provided by the Company as contemplated in Section 2.07(b), no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided further, however, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 2.06.
Without unnecessary delay but in any event
not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the
“Exchange Date”), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal
amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date
such temporary global Security shall be presented and surrendered by the U.S. Depositary to the Trustee, as the Company’s
agent for such purpose, or to the Security Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities
of such series without charge, and the Trustee shall authenticate and make available for delivery, in exchange for each portion
of such temporary global Security, a like aggregate principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security to be exchanged.
Every temporary Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities.
SECTION 2.09. Mutilated, Destroyed, Lost
or Stolen Securities and Coupons
If any mutilated Security or a Security with
a mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company
and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute and the Trustee shall authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost
or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or coupon; provided, however, that principal of (and premium, if any, on) and any interest on
Bearer Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located outside the
United States and its possessions.
Upon the issuance of any new Security under
this Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any
coupons appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost
or stolen coupon shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons,
if any, duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Cancellation.
All Securities surrendered for payment, redemption,
exchange or registration of transfer or for credit against any sinking fund payment, as the case may be, and any coupons surrendered
for payment, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All
Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee, and upon instruction by a Company Order, shall be cancelled or held for reissuance.
All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered
for cancellation for all purposes of this Indenture and the Securities. The Company may deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other person for delivery to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section except
as expressly provided by this Indenture. Any cancelled Securities and coupons held by the Trustee shall be destroyed by the Trustee
in accordance with its customary procedures. Upon written request in the form of a Company Order, the Company may direct the Trustee
to deliver a certificate of such destruction to the Company.
SECTION 2.11. Book Entry Only System.
If specified by the Company pursuant to Section
2.03(b) with respect to Securities represented by a Security in global form, a series of Securities may be issued initially in
book-entry only form and, if issued in such form, shall be represented by one or more Securities in global form registered in the
name of the U.S. Depositary or other depositary designated with respect thereto. So long as such system of registration is in effect,
(a) Securities of such series so issued in book-entry only form will not be issuable in the form of or exchangeable for Securities
in certificated or definitive registered form, (b) the records of the U.S. Depositary or such other depositary will be determinative
for all purposes and (c) neither the Company, the Trustee nor any paying agent, Security Registrar or transfer agent for such Securities
will have any responsibility or liability for (i) any aspect of the records relating to or payments made on account of owners of
beneficial interests in the Securities of such series, (ii) maintaining, supervising or reviewing any records relating to such
beneficial interests, (iii) receipt of notices, voting and requesting or directing the Trustee to take, or not to take, or consenting
to, certain actions hereunder, or (iv) the records and procedures of the U.S. Depositary, or such other depositary, as the case
may be.
Article
3
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities,
Applicability of Section.
Redemption of Securities of any series as
permitted or required by the terms thereof shall be made in accordance with the terms of such Securities as specified pursuant
to Section 2.03 hereof and this Article; provided, however, that if any provision of any series of Securities shall conflict with
any provision of this Section, the provision of such series of Securities shall govern.
SECTION 3.02. Notice of Redemption, Selection
of Securities.
In case the Company shall desire to exercise
the right to redeem all or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date
for redemption. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company,
or, at the Company’s request, by the Trustee in the name and at the expense of the Company. The Company or the Trustee, as
the case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, on that date
prior to the date fixed for a redemption to the holders of such Securities so to be redeemed, as a whole or in part, (a) as set
forth in a Board Resolution, as described in Section 2.03, or (b) as determined by the Chief Executive Officer, the Chief Financial
Officer, the Treasurer or the Controller of the Company (each, an “Authorized Officer”) and evidenced by the preparation
of an offering document or an Officer’s Certificate specifying the period of notice of such redemption. If the Board Resolutions
or an Authorized Officer do not specify a period of notice of such redemption, the Company or the Trustee, as the case may be,
shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, at least 10 Business Days and
not more than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as
a whole or in part. Notice given in such manner shall be conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice or any defect in the notice to the holder of any such Security designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security.
If the Company requests the Trustee to give any notice of redemption, it shall make such request at least ten days prior to the
designated date for delivering such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify
the date fixed for redemption, the redemption price at which such Securities are to be redeemed, the CUSIP numbers of such Securities,
the Place of Payment where such Securities, together, in the case of Bearer Securities, with all coupons appertaining thereto,
if any, maturing after the date of redemption, are to be surrendered for payment of the redemption prices, that payment will be
made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as
specified in the notice, and that on and after the date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all of a series is to be redeemed, the notice of redemption shall specify the numbers of the Securities to
be redeemed. In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities of the same series
in principal amount equal to the unredeemed portion thereof will be issued.
On or before the redemption date specified
in the notice of redemption given as provided in this Section, the Company will deposit in trust with the Trustee or with one or
more paying agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities
so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.
If less than all of a series of Securities is to be redeemed, the Company will give the Trustee adequate written notice at least
45 days in advance (unless a shorter notice shall be satisfactory to the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a series
are to be redeemed, the Trustee shall select, pro rata, by lot or in such other manner in its sole discretion it shall deem appropriate
and fair, not more than 60 days prior to the date of redemption, the numbers of such Securities Outstanding not previously called
for redemption, to be redeemed in whole or in part. The portion of principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof. The Trustee shall
promptly notify the Company of the Securities to be redeemed. If, however, less than all the Securities of a series having differing
issue dates, interest rates and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular
Securities of such series to be redeemed and shall notify the Trustee in writing at least 45 days prior to the relevant redemption
date.
SECTION 3.03. Payment of Securities Called
for Redemption.
If notice of redemption has been given as
above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and
payable on the date and at the place stated in such notice at the applicable redemption price, together with any interest accrued
to the date fixed for redemption, and on and after that date (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to that date) interest on such Securities or portions of Securities so
called for redemption shall cease to accrue and the coupons, if any, for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. On presentation and surrender of such Securities subject to
redemption at the Place of Payment and in the manner specified in such notice, together with all coupons, if any, appertaining
thereto and maturing after the date specified in such notice for redemption, such Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided, that installments of interest on Bearer Securities whose stated maturity date is on or prior to
the date of redemption shall be payable only at an office or agency located outside the United States and its possessions (except
as otherwise provided in Section 4.02) and, unless otherwise specified as contemplated by Section 2.03, only upon presentation
and surrender of coupons for such interest; and provided, further, that unless otherwise specified as contemplated by Section 2.03,
installments of interest on Registered Securities whose stated maturity date is on or prior to the date of redemption shall be
payable to the holders of such Registered Securities, or one or more predecessor Securities, registered as such at the close of
business on the relevant record dates according to their terms and the provisions of Section 2.05.
At the option of the Company, payment with
respect to Registered Securities may be made by check to the holders of such Securities or other persons entitled thereto against
presentation and surrender of such Securities.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the date of redemption, such Security may be paid after deducting
from the redemption price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If thereafter the holder of such Security shall surrender to the Trustee or
any paying agent any such missing coupon in respect of which a deduction shall have been made from the redemption price, such holder
shall be entitled to receive the amount so deducted; provided, that interest represented by coupons shall be payable only at an
office or agency located outside the United States and its possessions (except as otherwise provided in Section 4.02) and, unless
otherwise specified as contemplated by Section 2.03, only upon presentation and surrender of those coupons.
Any Security (including any coupons appertaining
thereto) that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder’s attorney duly authorized in writing), and upon such presentation, the Company shall
execute and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company,
a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the principal of the Security so presented. If a temporary global Security or permanent global Security is so surrendered,
such new Security so issued shall be a new temporary global Security or permanent global Security, respectively.
SECTION 3.04. Redemption Suspended During
Event of Default.
The Trustee shall not redeem any Securities
(unless all Securities then outstanding are to be redeemed) or commence the giving of any notice of redemption of Securities during
the continuance of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge or notice, except that
where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem such Securities,
provided funds are deposited with it for such purpose. Except as aforesaid, any moneys theretofore or thereafter received by the
Trustee shall, during the continuance of such Event of Default, be held in trust for the benefit of the securityholders and applied
in the manner set forth in Section 6.06; provided, that in case such Event of Default shall have been waived as provided herein
or otherwise cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article.
Article
4
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium
and Interest.
The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any, on) and any interest on each of the Securities of a series at the place,
at the respective times and in the manner provided in the terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 2.03(b) with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on or before maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION 4.02. Offices for Notices and
Payments, etc.
If Securities of a series are issuable only
as Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities
of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the contiguous
United States, an office or agency where any Registered Securities of that series may be presented or surrendered for payment,
where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for
payment in the circumstances described below (and not otherwise), (b) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the United States and its possessions, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment; provided, that if the Securities of that series
are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and its possessions and such stock exchange shall so require,
the Company will maintain a paying agent for the Securities of that series in London, Luxembourg or any other required city located
outside the United States and its possessions, as the case may be, so long as the Securities of that series are listed on such
exchange, and (c) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located
outside the United States and its possessions, an office or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this Indenture may be served.
The Company will give to the Trustee notice
of the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain
any such office or agency as required, or shall fail to give such notice of the location or of any change in the location thereof,
presentations and surrenders of Securities of that series may be made and notices and demands may be served at the principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment at any paying agent for such series located outside the United States and its possessions.
No payment of principal, premium or interest
on Bearer Securities shall be made at any office or agency of the Company in the United States or its possessions or by check mailed
to any address in the United States or its possessions or by transfer to any account maintained with a financial institution located
in the United States or its possessions; provided, that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and any interest on any Bearer Security shall be made at the office of the Company’s
paying agent in the contiguous United States, if (but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies outside the United States and its possessions maintained
for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the holders of any
such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the
Corporate Trust Office as the office of the Company in the contiguous United States where Registered Securities may be presented
for payment, for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon
the Company in respect of the Securities or of this Indenture may be served; provided that the Corporate Trust Office shall not
be an office or agency of the Company for the service of legal process against the Company.
SECTION 4.03. Provisions as to Paying
Agent.
(a) Whenever
the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that
it will hold sums held by it as such agent for the payment of the principal of (and premium, if any, on) or any interest on the
Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed
of as herein provided and will notify the Trustee of the receipt of sums to be so held;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of (or premium, if any, on) or any interest on the Securities of such series when the same shall be
due and payable; and
(3) that
at any time when any such failure has occurred and is continuing, it will, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent.
(b) If
the Company shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any) or
any interest on the Securities of any series, set aside, segregate and hold in trust for the benefit of the persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or any interest so becoming due until such sums shall be paid to such
persons or otherwise disposed of as herein provided. The Company will promptly notify the Trustee of any failure to take such action.
(c) Whenever
the Company shall have one or more paying agents with respect to a series of Securities, it will, on or prior to each due date
of the principal of (and premium, if any, on) or any interest on, any Securities, deposit with a paying agent a sum sufficient
to pay the principal (and premium, if any) or any interest, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
(d) Anything
in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such series by it or any paying agent hereunder as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained, and upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further liability with respect to such money.
(e) Anything
in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 12.03 and Section 12.04.
SECTION 4.04. Statement as to Compliance.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, commencing with the fiscal year ending in the year during which the
first series of Securities is issued hereunder (but in no event more than one year from the issuance of the first series hereunder),
a written statement signed by the Chief Executive Officer, President or other principal executive officer and by the Treasurer
or other principal financial officer or principal accounting officer of the Company, stating, as to each signer thereof, that:
(a) a
review of the activities of the Company during such year and of performance under this Indenture has been made under his or her
supervision; and
(b) to
the best of his or her knowledge, based on such review, the Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him
and the nature and status thereof.
SECTION 4.05. Corporate Existence.
Subject to the provisions of Article 11, the
Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises and the corporate existence and rights (charter and statutory) and franchises of
its Subsidiaries; provided, that except as set forth in Section 4.06 below, the Company shall not be required to, or to cause any
Subsidiary to, preserve any right or franchise or to keep in full force and effect the corporate existence of any Subsidiary if
the Company shall determine that the keeping in existence or preservation thereof is no longer desirable in or consistent with
the conduct of the business of the Company.
SECTION 4.06. Ownership of Material Subsidiary
Stock.
Except as otherwise specified with respect
to a series of Securities in accordance with the provisions of Section 2.1 and subject to the provisions of Article XI, so long
as any of the Securities are outstanding, the Company:
(a) will
not, nor will it permit the Material Subsidiary to, directly or indirectly, sell, assign, pledge, transfer or otherwise dispose
of any shares of, securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock
of the Material Subsidiary, nor will the Company permit the Material Subsidiary to issue any shares of, or securities convertible
into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Material Subsidiary if, in each
case, after giving effect to any such transaction and to the issuance of the maximum number of shares of Voting Stock of the Material
Subsidiary issuable upon the exercise of all such convertible securities, options, warrants or rights, the Company would cease
to own, directly or indirectly, at least 80% of the issued and outstanding Voting Stock of the Material Subsidiary; and
(b) will
not permit the Material Subsidiary to:
(1) merge
or consolidate with or into any corporation or other Person, unless the Company is the surviving corporation or Person, or unless,
upon consummation of the merger or consolidation, the Company will own, directly or indirectly, at least 80% of the surviving corporation’s
issued and outstanding Voting Stock;
(2) lease,
sell, assign or transfer all or substantially all of its properties and assets to any Person (other than the Company), unless,
upon such sale, assignment or transfer, the Company will own, directly or indirectly, at least 80% of the issued and outstanding
Voting Stock of that Person; or
(3) pay
any dividend in Voting Stock of a Material Subsidiary or make any other distribution in Voting Stock of a Material Subsidiary,
unless the Material Subsidiary to which the transaction relates, after obtaining any necessary regulatory approvals, unconditionally
guarantees payment of the principal and any premium and interest on the Securities.
Notwithstanding the foregoing, any such sale,
assignment, pledge or transfer of securities, any such merger or consolidation or any such lease, sale, assignment, pledge or transfer
of properties and assets shall not be prohibited if: (A) required by law, such lease, sale, assignment or transfer of securities
is made to any Person for the purpose of the qualification of such Person to serve as a director; (B) such lease, sale, assignment
or transfer of securities is made by the Company or any of its Subsidiaries acting in a fiduciary capacity for any Person other
than the Company or any Subsidiary; (C) made in connection with the consolidation of the Company with or the sale, lease or conveyance
of all or substantially all of the assets of the Company to, or merger of the Company with or into any other Person (as to which
Article XI of this Indenture shall apply); or (D) required as a condition imposed by any law or any rule, regulation or order of
any governmental agency or authority to the acquisition by the Company, directly or indirectly, through purchase of stock or assets,
merger, consolidation or otherwise, of any Person;
provided
, that, in the case of (D) only, after giving effect to such
disposition and acquisition, (y) at least 80% of the issued and outstanding Voting Stock of such Person will be owned, directly
or indirectly, by the Company and (z) the consolidated assets of the Company will be at least equal to 70% of the consolidated
assets of the Company prior thereto; and nothing in this Section 4.06 shall prohibit the Company or the Material Subsidiary from
the sale or transfer of assets pursuant to any securitization transaction or the pledge of any assets to secure borrowings incurred
in the ordinary course of business, including, without limitation, deposit liabilities, mortgage escrow funds, reverse repurchase
agreements, Federal Home Loan Bank of Dallas, recourse obligations incurred in connection with the Material Subsidiary’s
lending activities and letters of credit.
SECTION 4.07. Waiver of Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition set forth herein if before or after the time for such compliance the holders of a majority
in principal amount of the Securities of all series affected thereby then Outstanding shall either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
Article
5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists.
The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee as the Trustee may request in writing a list, in such form and as of such date
as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and addresses
of the holders of Registered Securities of a particular series specified by the Trustee which list may be conclusively relied upon
by the Trustee; provided, that if and so long as the Trustee shall be the Security Registrar with respect to such series, such
list shall not be required to be furnished.
SECTION 5.02. Preservation and Disclosure
of Lists.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(b) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other securityholders with respect to their rights
under this Indenture or under the Securities. The Company, the Trustee, the Security Registrar and anyone else shall have the protection
of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant to a request made pursuant to
Section 312(b) of the Trust Indenture Act.
SECTION 5.03. Reports by the Company.
The Company covenants so long as Securities
are Outstanding:
(a) to
file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to
file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such rules and regulations; and
(c) to
transmit by mail to all the holders of Registered Securities of each series, as the names and addresses of such holders appear
on the registry books, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) On
or about [________________, _______], so long as any Securities are outstanding hereunder and if there has been any change in the
following, the Trustee shall transmit by mail, first class postage prepared, to the securityholders, as their names appear upon
the Security Register, a brief report dated as of the preceding [________________, _______], if and to the extent required under
Section 313(a) of the Trust Indenture Act, detailing certain events that occurred within the previous 12 months.
(b) The
Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any stock exchange.
Article
6
REMEDIES
SECTION 6.01. Events of Default; Acceleration
of Maturity.
In case one or more of the following Events
of Default with respect to a particular series shall have occurred and be continuing:
(a) default
in (i) the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon redemption, by declaration or otherwise or (ii) any payment required by any sinking
or analogous fund established with respect to that series; or
(b) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; or
(c) failure
on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained
in the Securities or in this Indenture for a period of 90 days after the date on which written notice of such failure, requiring
the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Securities of that series at the time Outstanding; or
(d) a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or the Material Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any Material Subsidiary
or for any substantial part of their respective property, or ordering the winding-up or liquidation of its affairs and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the
Company or the Material Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law,
or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or similar official) of the Company or the Material Subsidiary or for any substantial part of their respective property, or shall
make any general assignment for the benefit of creditors; or
(f) any
other Event of Default provided with respect to Securities of that series;
then, if an Event of Default described in
clause (a), (b), (c), or (f) shall have occurred and be continuing, and in each and every such case, unless the principal amount
of all the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by securityholders) may declare the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of that series to be due and
payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Securities of such series contained to the contrary notwithstanding; or, if an Event of Default described
in clause (d) or (e) shall have occurred and be continuing, and in each and every such case, unless the principal of all the Securities
of such series shall have already become due and payable, the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) shall be automatically deemed
immediately due and payable.
SECTION 6.02. Rescission and Annulment
The provisions in Section 6.01 are subject
to the condition that if, at any time after the principal of the Securities of any one or more of all series, as the case may be,
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series or of all the Securities, as the case may be, and the principal
of (and premium, if any, on) all Securities of such series or of all the Securities, as the case may be (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities), which shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any) and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified
in the Securities of such series or all Securities, as the case may be (or, with respect to Original Issue Discount Securities,
at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration
of such series, as the case may be), to the date of such payment or deposit, and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its gross negligence or willful misconduct, and any and all defaults under the Indenture,
other than the non-payment of the principal of Securities that has become due by acceleration, shall have been remedied; then and
in every such case the holders of a majority in aggregate principal amount of the Securities of such series (or of all the Securities,
as the case may be) then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect
to that series or with respect to all Securities, as the case may be in such case, treated as a single class and rescind and annul
such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission
and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the securityholders, as the case may be, shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the securityholders, as the case may be, shall continue as
though no such proceedings had been taken.
SECTION 6.03. Collection of Indebtedness
and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default
is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such default
continues for a period of 90 days,
(b) default
is made in the payment of the principal or premium, if any, of any Security at the maturity thereof, including any maturity occurring
by reason of a call for redemption or otherwise, or
(c) default
is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the holders of such Securities and any coupons appertaining thereto, the whole amount that shall
have become due and payable on such Securities and coupons for principal or premium, if any, and interest, with interest upon the
overdue principal and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest,
at the rate borne by such Securities; and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.04. Trustee May File Proofs
of Claim.
In the case of the pendency of a receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of principal and premium, if any, and any interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the holders of Securities and coupons allowed in such judicial proceeding; and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator
or sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each holder of Securities and
coupons to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the holders of Securities and coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. To
the extent that such payment of reasonable compensation, expenses, disbursements, advances and other amounts out of the estate
in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, moneys, securities and other property which the holders of the Securities and coupons
may be entitled to receive in such proceedings, whether in liquidation or under any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of the holder of a Security or a coupon any plan
of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any holder thereof,
or to authorize the Trustee to vote in respect of the claim of any holder of a Security or a coupon in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims
Without Possession of Securities or Coupons.
All rights of action and claims under this
Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities
or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Securities and coupons in respect of which such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or any interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 7.06;
SECOND: To the payment of all senior Indebtedness
of the Company if and to the extent required by Article 16;
THIRD: To the payment of the amounts then
due and unpaid upon the Securities for principal of and premium, if any, and any interest on the Securities and coupons, in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and coupons, for principal and any interest, respectively; and
FOURTH: To the Company or its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits.
No holder of any Security of any series or
any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such
holder has previously given written notice to the Trustee of a continuing Event of Default;
(2) the
holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such
holder or holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceedings;
and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one
or more such holders of Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such holders of Securities or to obtain or to seek to
obtain priority or preference over any other of such holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such holders of Securities.
SECTION 6.08. Unconditional Right of
Securityholders to Receive Principal and Interest.
Notwithstanding any other provision in this
Indenture, the holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of
the principal of and premium, if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security or payment of
such coupon on the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on the redemption
date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of
such holder.
SECTION 6.09. Restoration of Rights and
Remedies.
If the Trustee or any holder of a Security
or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such holder, then and in every such case the
Company, the Trustee and the holders of Securities and coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the holders
shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right
or remedy herein conferred upon or reserved to the Trustee or to the holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of
any holder of any Security or coupon to exercise any right or remedy accruing upon any Default shall impair any such right or remedy
or constitute a waiver of any such Default or any acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the holders of Securities or coupons, as the case may be.
SECTION 6.12. Control by Securityholders.
The holders of a majority in principal amount
of Outstanding Securities of each series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that
(1) such
direction shall not be in conflict with any statute, rule of law or with this Indenture;
(2) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) the
Trustee need not take any action which it in good faith determines might involve it in personal liability or be unjustly prejudicial
to the securityholders not consenting.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a temporary global Security or a permanent global
Security, the Trustee may establish a record date for determining holders of Outstanding Securities of such series entitled to
join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction. The
holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such direction,
whether or not such holders remain holders after such record date, provided that, unless such majority in principal amount shall
have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further
action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder,
from giving, after expiration of such 90-day period, a new direction identical to a direction which has been cancelled pursuant
to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this
Section 6.12.
SECTION 6.13. Waiver of Past Defaults.
The holders of a majority in principal amount
of the Securities of each series at the time Outstanding may, on behalf of the holders of all the Securities of that series and
any coupons appertaining thereto, waive any past default hereunder and its consequences, except a default:
(1) in
the payment of the principal of, premium, if any, or any interest on any Security;
(2) described
in clauses (d) or (e) of Section 6.01; or
(3) in
respect of a covenant or provision hereof that pursuant to Article 10 cannot be modified or amended without the consent of the
holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease
to exist, and any Default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture,
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each
holder of any Security or coupon by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any holder, or group of holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any holder of any Securities or coupons for the enforcement of the payment of the principal
of, premium, if any, or any interest on any Security or the payment of any coupon on or after the respective stated maturities
expressed in such Security or coupon (or, in the case of redemption, on or after the redemption date, except, in the case of a
partial redemption, with respect to the portion not so redeemed).
SECTION 6.15. Waiver of Stay or Extension
Laws.
The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension laws wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits
or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article
7
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities
of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default of a particular series and after the curing of all Events of Default of
such series which may have occurred, undertakes to perform such duties and only such duties with respect to such series as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the
Trustee. In the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In
case an Event of Default with respect to a particular series has occurred (which has not been cured), the Trustee shall exercise
with respect to such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No
provisions of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior
to the occurrence of an Event of Default with respect to a particular series and after the curing of all Events of Default with
respect to such series which may have occurred, the duties and obligations of the Trustee with respect to such series shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of Securities pursuant to Section 6.12 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) No
provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 7.02. Reliance on Documents,
Opinions, etc.
Subject to the provisions of Section 7.01:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer’s Certificate;
(c) the
Trustee may consult with counsel and the advice of such counsel and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the holders of any Securities or any related coupons pursuant to the provisions of this Indenture, unless
such holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the losses, costs, expenses
and liabilities which might be incurred therein or thereby;
(e) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or documents,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(f) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(g) the
Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(h) the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities
of a particular Series and this Indenture;
(i) in
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action;
(j) the
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty
to do so; and
(k) the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise in respect
of the Indenture.
SECTION 7.03. No Responsibility for Recitals,
etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or coupons, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 7.04. Ownership of Securities.
The Trustee, any authenticating agent, any
paying agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons with the same rights it would have if it were not Trustee, authenticating
agent, paying agent, Security Registrar or such other agent of the Company or of the Trustee.
SECTION 7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04
hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except
such as it may agree in writing with the Company to pay thereon.
SECTION 7.06. Compensation and Expenses
of Trustee.
The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder
as the Company and the Trustee shall from time to time agree in writing (which to the extent permitted by law shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided,
the Company will pay or reimburse the Trustee forthwith upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its gross negligence or willful misconduct. If any property other than cash shall at any time be subject
to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make and to be reimbursed
for, advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon.
The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any and all loss, damage, claims, liability
or expense, including taxes (other than taxes based upon, measured or determined by, the income of the Trustee) incurred without
gross negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any claim of liability and enforcing the provisions
of this Section 7.06. The obligations of the Company under this Section shall constitute additional indebtedness hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
To secure the Company’s obligations
under this Section, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property
held or collected by the Trustee, except that held in trust to pay principal of (and premium, if any) and interest, if any, on
particular Securities.
When the Trustee incurs expenses or renders
services after an Event of Default, the expenses and the compensation for the services are intended to constitute expenses of administration
under any bankruptcy law.
The Company’s obligations under this
Section 7.06 shall survive satisfaction and discharge of the Indenture, payment of the Securities and any resignation or removal
of the Trustee hereunder.
SECTION 7.07. Officer’s Certificate
as Evidence
Subject to the provisions of Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualifications; Conflicting
Interest of Trustee.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Eligibility of Trustee.
There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof
or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, (b) is subject to supervision
or examination by federal, state, territorial or District of Columbia authority, (c) shall have at all times a combined capital
and surplus of not less than $50,000,000 and (d) shall not be the Company or any person directly or indirectly controlling, controlled
by, or under common control with the Company. If such corporation publishes reports of condition at least annually, pursuant to
law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal
of Trustee.
(a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series by giving
written notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after
written request therefor by the Company or by any securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months,
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by any such securityholder, or
(3) the
Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company
may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such
series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.14, any securityholder
of such series who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may,
on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of all series (voting as one class) at the time Outstanding
may at any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the
Securities of all series.
(d) Any
resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section
shall become effective upon the appointment of a successor trustee and the acceptance of appointment by the successor trustee as
provided in Section 7.11.
SECTION 7.11. Acceptance by Successor
Trustee.
Any successor trustee appointed as provided
in Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the predecessor
trustee shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the predecessor trustee. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm
to such successor trustee all such rights and powers. Any trustee, including the initial Trustee, ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 7.06.
In case of the appointment hereunder of a
successor trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series shall execute and deliver a supplemental indenture
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each
such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such trustee.
No successor trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified and eligible under
the provisions of this Article 7.
Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall mail notice of the succession of such trustee hereunder to all holders of
Securities of any applicable series as the names and addresses of such holders shall appear on the registry books. If the Company
fails to mail such notice in the prescribed manner within ten days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be so mailed at the expense of the Company.
SECTION 7.12. Successor by Merger, etc.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified and eligible under
the provisions of this Article 7, without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 7.13. Limitations on Rights of
Trustee as Creditor.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 7.14. Notice of Default.
Within 90 days after the occurrence of any
default on a series of Securities hereunder, the Trustee shall transmit to all securityholders of that series, in the manner and
to the extent provided in Section 15.04, notice of such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, that except in the case of a default in the payment of the principal of or interest on any Security
or on the payment of any sinking or purchase fund installment, the Trustee shall be protected in withholding such notice if and
so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the security-holders;
and provided, further , that in the case of any default of the character specified in clause (c) of Section 6.01 no such notice
to securityholders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term
“default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 7.15. Appointment of Authenticating
Agent.
The Trustee may appoint an authenticating
agent or agents (which may be an affiliate or affiliates of the Company) with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to Section 2.09, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent shall be acceptable to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or Territory thereof or of the District of Columbia, which
(a) is authorized under such laws to exercise corporate trust powers or to otherwise act as authenticating agent, (b) is subject
to supervision or examination by federal, state, territorial or District of Columbia authority, and (c) shall have at all times
a combined capital and surplus of not less than $50,000,000. If such authenticating agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such authenticating agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, such authenticating agent shall resign immediately in the manner and with the effect specified
in this Section.
Any corporation into which an authenticating
agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such authenticating agent, shall continue to be an authenticating agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or such authenticating agent.
An authenticating agent may resign at any
time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an
authenticating agent by giving written notice thereof to such authenticating agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor authenticating agent which shall be acceptable to the
Company and shall promptly give notice of such appointment to all holders of Securities in the manner and to the extent provided
in Section 15.04. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent.
No successor authenticating agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each authenticating
agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory
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If all of the Securities of a series may not
be originally issued at one time, and the Trustee does not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing, shall appoint in accordance with this Section an authenticating agent (which,
if so requested by the Company, shall be such affiliate of the Company) having an office in a Place of Payment designated by the
Company with respect to such series of Securities, provided that the terms and conditions of such appointment are acceptable to
the Trustee.
Article
8
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any authorization, notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by securityholders in person or by
agent or proxy appointed in writing, or (b) if Securities of a series are issuable as Bearer Securities, by the record of the holders
of Securities voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of securityholders
of such series duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of securityholders.
In determining whether the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series have taken any action (including the making of
any demand or request, the giving of any authorization, direction, notice, consent or waiver or the taking of any other action),
(i) the principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall
be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be
due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking
of such of such action is evidenced to the Trustee, and (ii) the principal amount of a Security denominated in a foreign currency
or currency unit shall be the U.S. dollar equivalent, determined as of the date of original issuance of such Security in accordance
with Section 2.03(b) hereof, of the principal amount of such Security.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy, or of the holding
by any person of a Security, shall be sufficient and conclusive in favor of the Trustee and the Company if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The principal amount and serial numbers of
Registered Securities held by any person, and the date of holding the same, shall be proved by the Security Register. The principal
amount and serial numbers of Bearer Securities held by any person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned
such person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for
a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any person, and the date of holding the same, may also be provided in any other manner which the Trustee deems
sufficient.
The record of any securityholders’ meeting
shall be proved in the manner provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute
Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose
name such Registered Security shall be registered upon the Security Register to be, and may treat him as, the absolute owner of
such Registered Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon), for the purpose of receiving payment of or on account of the principal of (and premium, if any) and, subject
to the provisions of Section 2.05 and Section 2.07, any interest on such Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or of the Trustee shall be affected by any notice to the contrary. All such payments
so made to any holder for the time being, or upon his or her order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or of the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect
to any temporary or permanent global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company
or of the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depositary,
or impair, as between a U.S. Depositary and holders of beneficial interests in any temporary or permanent global Security, as the
case may be, the operation of customary practices governing the exercise of the rights of the U.S. Depositary as holder of such
temporary or permanent global Security.
SECTION 8.04. Company-Owned Securities
Disregarded.
In determining whether the holders of the
required aggregate principal amount of Securities have provided any request, demand, authorization, notice, direction, consent
or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or by any person
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor
on the Securities, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that
for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
SECTION 8.05. Revocation of Consents;
Future Securityholders Bound.
At any time prior to the taking of any action
by the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with
such action, any holder of a Security, the identifying number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action, may, by filing written notice with the Trustee at its office and upon proof
of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of
such Security and of any Security issued upon registration of transfer of or in exchange or substitution therefor in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, irrespective of whether or not
any notation in regard thereto is made upon such Security. Any action taken by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Securities.
SECTION 8.06. Record Date.
The Company may, but shall not be obligated
to, set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent
to any action by vote or consent or to otherwise take any action under this Indenture authorized or permitted by Section 6.12 and
Section 6.13 or otherwise under this Indenture. Such record date shall be the later of (i) the date 20 days prior to the first
solicitation of such consent or vote or other action and (ii) the date of the most recent list of holders of such Securities delivered
to the Corporate Trust Office of the Trustee pursuant to Section 5.01 prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of business on such record date shall be entitled to vote or consent
or take such other action, or to revoke any such action, whether or not such persons continue to be holders after such record date,
and for that purpose the Outstanding Securities shall be computed as of such record date.
Article
9
SECURITYHOLDERS’ MEETINGS
SECTION 9.01. Purposes of Meeting.
A meeting of holders of any or all series
of Securities may be called at any time and from time to time pursuant to the provisions of this Article for any of the following
purposes:
(a) to
give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and
its consequences, or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article
6;
(b) to
remove the Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(c) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to
take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the
Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting
of security-holders of any or all series to take any action specified in Section 9.01, to be held at such time and at such place
in New York, New York or Pine Bluff, Arkansas as the Trustee shall determine. Notice of every meeting of the securityholders of
any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given in the manner provided in Section 15.04 not less than 20 nor more than 180 days prior to the date fixed
for the meeting.
SECTION 9.03. Call of Meetings by Company
or Securityholders.
In case at any time the Company, pursuant
to a Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as
the case may be, then Outstanding, shall have requested the Trustee to call a meeting of securityholders of any or all series to
take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have provided notice of such meeting in the manner provided in Section 15.04 within 30
days after receipt of such request, then the Company or the holders of such Securities in the amount above specified may determine
the time and the place in New York, New York or Pine Bluff, Arkansas for such meeting and may call such meeting by giving notice
thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of securityholders
a person shall be a holder of one or more Securities of such series Outstanding with respect to which a meeting is being held or
a person appointed by an instrument in writing as proxy by such a holder or holders. The only persons who shall be entitled to
be present or to speak at any meeting of the securityholders of any series shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations.
Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders of a series,
in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it deems fit. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Article 8 and the appointment of any proxy shall be proved
in the manner specified in Article 8 or by having the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Article 8 to certify to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified
in Article 8 or other proof.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by securityholders as
provided in Section 9.03, in which case the Company or the securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.01
and Section 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each $1,000 (or the U.S. Dollar
equivalent thereof in connection with Securities issued in a foreign currency or currency unit) Outstanding principal amount of
Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote except as a securityholder or proxy. Any meeting of securityholders duly called pursuant
to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time, and the meeting may be reconvened without
further notice.
SECTION 9.06. Voting.
The vote upon any resolution submitted to
any meeting of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders or
proxies and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers
of the Securities held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting
of securityholders shall be prepared by the secretary of the meeting and there shall be attached to the record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that the notice was mailed as provided in Section 9.02. The record
shall be signed and verified by the chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Article
10
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures
without Consent of Securityholders.
Without the consent of any holders of Securities
or coupons, the Company, when authorized by or pursuant to Board Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
in force at the date of the execution thereof) for one or more of the following purposes:
(a) to
evidence the succession of another corporation to the Company, or successive successions, pursuant to Article 11 hereof, and the
assumption by the successor corporation of the covenants, agreements and obligations of the Company herein and in the Securities;
(b) to
add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the holders of 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 several remedies provided in this Indenture as herein set forth, with such period of grace, if any, and subject
to such conditions as such supplemental indenture may provide;
(c) to
add to or change any of the provisions of this Indenture to provide that Bearer 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 Securities in uncertificated form,
provided that any such action shall not adversely affect the interests of the holders of Securities of any series or any related
coupons in any material respect;
(d) to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the Trust Indenture Act, excluding however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter enacted;
(e) to
modify, eliminate or add to any of the provisions of this Indenture, provided that any such change or elimination (i) shall become
effective only when there is no Security of any series Outstanding and created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding;
(f) to
cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provisions contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under
this Indenture, provided such other provisions shall not adversely affect in any material respect the interests of the holders
of the Securities or any related coupons, including provisions necessary or desirable to provide for or facilitate the administration
of the trusts hereunder;
(g) to
secure any series of Security; and
(h) to
evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one
or more series and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to Section 7.11.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise. No supplemental indenture shall be effective as against the Trustee
unless and until the Trustee has duly executed and delivered the same.
SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of all series at the time
Outstanding affected by such supplemental indenture (voting as one class), the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Securities of such series and any related coupons under this Indenture; provided,
that no such supplemental indenture shall (1) extend the fixed maturity of any Securities, 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 Security so affected, (2) reduce the aforesaid percentage of Securities, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all Securities then Outstanding, (3) modify the subordination
provisions in a manner adverse to the holders of such Securities, or (4) modify any of the above provisions.
Upon the request of the Company, accompanied
by a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of securityholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent
of the securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Article 10, the Company shall provide notice,
in the manner and to the extent provided in Section 15.04, setting forth in general terms the substance of such supplemental indenture,
to all holders of Securities of each series so affected. Any failure of the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.03. Compliance with Trust
Indenture Act; Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant
to the provisions of this Article 10 shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10 and subject to the provisions in any supplemental indenture relating to
the prospective application of such instrument, this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining
thereto shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
The Trustee, subject to the provisions of
Section 7.01 and Section 7.02, shall be entitled to receive and shall be fully protected in relying upon an Officer’s Certificate
and an Opinion of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of this Article
10.
SECTION 10.04. Notation on Securities.
Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders,
in exchange for the Securities of such series then Outstanding.
Article
11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate,
etc., on Certain Terms.
The Company covenants that it will not merge
into or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm or
corporation, unless (1) either the Company shall be the continuing corporation, or the successor corporation (if other than the
Company) shall be a corporation organized and existing under the laws of the United States of America or a state thereof or the
District of Columbia and such corporation shall expressly assume the due and punctual payment of the principal of (and premium,
if any, on) and any interest on all the Securities, according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by the Company by supplemental indenture, executed and
delivered to the Trustee by such corporation, and (2) the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 11.02. Successor Corporation
Substituted.
In case of any such consolidation, merger,
sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be
substituted for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as
the party of the first part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject
to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall make available
for delivery any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution thereof.
In case of any such consolidation, merger,
sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 11.03. Opinion of Counsel and
Officer’s Certificate to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officer’s Certificate as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article 11 and that all conditions precedent herein provided for relating to such transaction
have been complied with.
Article
12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture.
If at any time
(a) the
Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all coupons,
if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 2.07, (ii)
Securities and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09,
(iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 3.03, and (iv) Securities and coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 4.03), or
(b) all
such Securities of such series and, in the case of (a)(i) or (a)(ii) above, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation (i) shall have become due and payable, or (ii) are by their terms to become due and payable within
one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company in the case of (a)(i) or (a)(iii) above shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount (other than moneys repaid by the Trustee or any paying agent to the Company in accordance
with Section 12.04) sufficient to pay at maturity or upon redemption all Securities of such series and coupons not therefore 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 fixed for redemption, as the case may be, and if in either case the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company with respect to such series, then this Indenture shall cease to be of further effect
with respect to the Securities of such series, and the Trustee, on demand of and at the cost and expense of the Company and subject
to Section 15.05, shall execute such instruments reasonably requested by the Company acknowledging satisfaction of and discharging
this Indenture with respect to the Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably incurred by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Securities of any series or of all series, the obligations
of the Company to the Trustee under Section 7.06 shall survive.
The Company will deliver to the Trustee an
Officer’s Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with.
SECTION 12.02. Deposited Moneys to be
Held in Trust by Trustee.
Subject to the provisions of the last paragraph
of Section 4.03, all moneys deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the persons entitled
thereto, of all sums due and to become due thereon for principal and interest (and premium, if any) for which payment of such money
has been deposited with the Trustee.
SECTION 12.03. Paying Agent to Repay
Moneys Held.
In connection with the satisfaction and discharge
of this Indenture with respect to Securities of any series and the payment of all amounts due to the Trustee under Section 7.06,
all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of (and premium, if any) or interest on any Security and not applied but remaining
unclaimed for two years after the date upon which such principal (and premium, if any, on) or interest shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on demand, and the holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for any payment which such holder may be entitled to collect and all
liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
Article
13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities
Solely Corporate Obligations.
No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security or coupon, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the acceptance of the Securities or coupons by the holders thereof and
as part of the consideration for the issue of the Securities.
Article
14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article.
Unless, as specified pursuant to Section 2.03(b),
provision is made that either or both of (a) defeasance of the Securities of a series under Section 14.02 and (b) covenant defeasance
of the Securities of a series under Section 14.03 shall not apply to the Securities of a series, then the provisions of such Section
14.02 and Section 14.03, together with Section 14.04 and Section 14.05, shall be applicable to the Outstanding Securities of all
series upon compliance with the conditions set forth below in this Article 14.
SECTION 14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may
cause itself to be discharged from its obligations with respect to the Outstanding Securities of any series on and after the date
the conditions precedent set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below
(hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense
of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (a) the rights of holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments
of the principal of and any premium and interest on such Securities when such payments are due, (b) the Company’s obligations
with respect to such Securities under Section 2.07, Section 2.08, Section 2.09, Section 4.02 and Section 4.03 and such obligations
as shall be ancillary thereto, (c) the rights, powers, trusts, duties, immunities and other provisions in respect of the Trustee
hereunder, and (D) this Article 14. Subject to compliance with this Article 14, defeasance with respect to Securities of a series
by the Company is permitted under this Section 14.02 notwithstanding the prior exercise of its rights under Section 14.03 with
respect to the Securities of such series. Following a defeasance, payment of the Securities of such series may not be accelerated
because of an Event of Default.
SECTION 14.03. Covenant Defeasance.
The Company may cause itself to be released
from its obligations under any Sections applicable to Securities of a series that are determined pursuant to Section 2.03(b) to
be subject to this provision with respect to the Outstanding Securities of such series on and after the date the conditions precedent
set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter, “covenant
defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 14.04. Conditions to Defeasance
or Covenant Defeasance.
The following shall be the conditions precedent
or, as specifically noted below, subsequent to application of either Section 14.02 or Section 14.03 to the Outstanding Securities
of such series:
(a) The
Company shall 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 benefit of the holders of such
Securities, (i) money in an amount, or (ii) U.S. Government Obligations which 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, money
in an amount, or (c) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (1) the principal of and any premium and interest on the Outstanding
Securities of such series to maturity or redemption, as the case may be, and (2) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may
make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article
3 which shall be given effect in applying the foregoing. For this purpose, “U.S. Government Obligations” means securities
that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or
(y) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government obligation
or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt;
(b) No
Default, or event that after notice or lapse of time, or both, would become a Default with respect to the Securities of such series,
shall have happened and be continuing (i) on the date of such deposit or (ii) insofar as Section 6.01(a) and Section 6.01(b) are
concerned, at any time 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 in respect of such deposit (it being understood
that the condition in this clause (b) is a condition subsequent and shall not be deemed satisfied until the expiration of such
period);
(c) Such
defeasance or covenant defeasance shall not (i) cause the Trustee for the Securities of such series to have a conflicting interest
as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company or (ii) result
in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended;
(d) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which it is bound;
(e) Such
defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities
exchange under the Exchange Act to be delisted;
(f) In
the case of a defeasance under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date
of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the Outstanding Securities of such series 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,
in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g) In
the case of covenant defeasance under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(h) Such
defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 2.03(b); and
(i) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent and subsequent provided for in this Indenture relating to either the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03, as the case may be, have been complied with.
SECTION 14.05. Deposited Money and U.S.
Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of the Outstanding Securities
of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any paying agent (but not including the Company acting as its own paying
agent) as the Trustee may determine, to the holders of such Securities of all sums due and to become due thereon in respect of
principal and any premium and interest, but such money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the money or U.S. Government Obligations deposited pursuant
to Section 14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant defeasance, provided that the Trustee shall not be required
to liquidate any U.S. Government Obligations in order to comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding,
if and to the extent the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied
by the Trustee in accordance with this Section because of a court order or by operation of Article 16 or (ii) are for any reason
insufficient in amount, then the Company’s obligations to pay principal of and any premium and interest on the Securities
of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any such case,
the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated
to the extent the Company’s payment obligations are reinstated.
Article
15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture
Restricted to Parties and Securityholders.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and
their successors and assigns and the holders of the Securities (and, with respect to the provisions of Article 16, the holders
of senior Indebtedness), any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and assigns
and the holders of the Securities (and, with respect to the provisions of Article 16, the holders of senior Indebtedness).
SECTION 15.02. Provisions Binding on
Company’s Successors.
All the covenants, stipulations, promises
and agreements in this Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 15.03. Addresses for Notices,
etc., to Company and Trustee.
Any notice or demand which by any provisions
of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Company
may be given or served by postage prepaid first class mail addressed (until another address is filed by the Company with the Trustee),
as follows: Simmons First National Corporation, 501 Main Street, Pine Bluff, Arkansas 71601, Attn: General Counsel. Any notice,
direction, request or demand by any securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee as set forth in Section 4.02.
SECTION 15.04. Notice to Holders of Securities;
Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice of holders of Securities of any event,
(a) such
notice shall be sufficiently given to holders of Registered Securities if in writing and mailed, first-class postage prepaid, to
each holder of a Registered Security affected by such event, at the address of such holder as it appears in the Security Register,
not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(b) such
notice shall be sufficiently given to holders of Bearer Securities if published in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving
of such notice.
In any case where notice to holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
holder of a Registered Security shall affect the sufficiency of such notice with respect to other holders of Registered Securities
or the sufficiency of any notice to holders of Bearer Securities given as provided herein.
Neither the failure to give notice by publication
to holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any
notice to holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Notwithstanding anything in this Indenture
to the contrary, where any notice is to be given to the Holders of Global Securities, notice shall be sufficient if given in accordance
with the procedures of the U.S. Depositary.
SECTION 15.05. Evidence of Compliance
with Conditions Precedent.
Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each Officer’s Certificate and Opinion
of Counsel provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant
or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
SECTION 15.06. Legal Holidays.
In any case where the date of maturity of
interest on or principal of the Securities or the date fixed for redemption of any Securities shall be a Saturday or Sunday or
a legal holiday in New York, New York or Pine Bluff, Arkansas or in such other place or places as the Company may designate pursuant
to Section 4.02, or a day on which banking institutions in New York, New York or Pine Bluff, Arkansas or in such other place or
places are authorized by law or required by executive order to close, then payment of interest or principal (and premium, if any)
need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 15.07. Trust Indenture Act to
Control.
If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included
in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 15.08. Execution in Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission will constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures
of the parties hereto transmitted by facsimile or PDF will be deemed to be their original signatures for all purposes.
SECTION 15.09. Governing Law; Waiver
of Jury Trial.
This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of the State of New York.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 15.10. Severability.
In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture,
hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
SECTION 15.11. Interpretations.
The Table of Contents, Cross-Reference Table
and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
This Indenture may not be used to interpret
any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 15.12. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance
with Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the “USA PATRIOT Act”), the Trustee, like all financial institutions and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
SECTION 15.13. Force Majeure.
In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 15.14. Jurisdiction.
The Company and the Trustee agree that any
suit, action or proceeding arising out of or based upon this Indenture or the Securities may be instituted in any state or Federal
court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and irrevocably submit to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Trustee irrevocably waive, to
the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this
Indenture or the Securities, including such actions, suits or proceedings relating to securities laws of the United States or any
state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action
or proceeding has been brought in an inconvenient forum. The Company and the Trustee agree that final judgment in any such suit,
action or proceeding brought in such court shall be conclusive and binding upon the Company or the Trustee, as applicable, and
may be enforced in any court to the jurisdiction of which the Company or the Trustee, as applicable, is subject by a suit upon
such judgment
Article
16
RANKING OF SECURITIES
SECTION 16.01. Ranking.
Except as otherwise provided in a supplemental
indenture or pursuant to Section 2.01, the Company agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities constitutes and will constitute a senior unsecured general obligation of the Company, ranking equally
with other existing and future senior unsecured Indebtedness of the Company, ranking equally with other existing and future senior
unsecured Indebtedness of the Company and ranking senior in right of payment to any future Indebtedness of the Company that is
expressly made subordinate to the Securities by the terms of such Indebtedness.
IN WITNESS WHEREOF, SIMMONS FIRST NATIONAL
CORPORATION has caused this Indenture to be signed and acknowledged by its Chief Executive Officer or its President or one of its
Vice Presidents and WILMINGTON TRUST, NATIONAL ASSOCIATION has caused this Indenture to be signed and acknowledged by one of its
Responsible Officers, all as of the day and year first above written.
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SIMMONS FIRST NATIONAL CORPORATION
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By:
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Name:
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Title:
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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AS TRUSTEE
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By:
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Name:
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Title:
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EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE (1) BEARER SECURITY, SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL SECURITY OR (3) INTEREST
ON A TEMPORARY GLOBAL SECURITY] CERTIFICATE
[Insert title or sufficient description
of Securities]
This is to certify that the above-captioned
Securities are being acquired by or on behalf of, (or for offer to resell or for resale to), and if this certificate is being delivered
in connection with a payment of interest, were beneficially owned by or on behalf of, (a) a person (other than a financial institution
for purposes of resale during the restricted period) who is not a United States person; or (b) a United States person (other than
a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution
and who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in
the case of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986, as from time to time amended, and
the regulations thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial
institution has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person
within the United States or its possessions. If the undersigned is a clearing organization, the undersigned has obtained a similar
certificate from its member organizations on which this certificate is based; provided, that if the undersigned has actual knowledge
that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such
Security is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United
States address for such beneficial owner, other than a financial institution described above), the undersigned will not deliver
a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless
of its source, “United States” means the United States of America (including the States and the District of Columbia),
“possessions” of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and Northern Mariana Islands, “restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the
Treasury Regulations and “financial institution” means the persons described in Section 1.165-12(c)(1)(v) of the Treasury
Regulations.
We undertake to advise you by telex if the
above statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities or on the interest
payment date with respect to the above-captioned Securities, as the case may be, as to all of such Securities.
We understand that this certificate may be
required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated: __________________, 20___
[To be dated on or after
__________________, 20___ (the
date determined as provided in the
Indenture)]
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[Name of Person Entitled to Receive Bearer Security or Interest]
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(Authorized Signatory)
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Name:
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Title:
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Exhibit 4.4
SIMMONS FIRST NATIONAL CORPORATION,
AS ISSUER
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
AS TRUSTEE
SUBORDINATED INDENTURE
DATED AS OF [________________, _______]
SUBORDINATED DEBT SECURITIES
CROSS-REFERENCE TABLE
Reconciliation and tie between the Trust Indenture Act of 1939,
as amended (the “TIA”), and the Indenture dated as of __________, 2018.
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SECTION OF ACT
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SECTION OF INDENTURE
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310(a)(1) and (2)
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7.09
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310(a)(3) and (4)
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Not applicable
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310(a)(5)
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7.09
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310(b)
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7.08 and 7.10
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310(c)
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Not applicable
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311(a) and (b)
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7.13
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311(c)
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Not applicable
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312(a)
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5.01 and 5.02(a)
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312(b) and (c)
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5.02(b) and (c)
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313(a)
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5.04(a)
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313(b)(1)
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Not applicable
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313(b)(2)
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5.04(b)
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313(c)
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5.04(c)
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313(d)
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5.04(d)
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314(a)
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5.03
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314(b)
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Not applicable
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314(c)(1) and (2)
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14.04
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314(c)(3)
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Not applicable
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314(d)
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Not applicable
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314(e)
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15.05
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314(f)
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Not applicable
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315(a), (c) and (d)
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7.01
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315(b)
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7.14
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315(e)
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6.14
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316(a)(1)
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6.12
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316(a)(2)
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Omitted
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316(a) last sentence
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8.04
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316(b)
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6.08
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316(c)
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8.06
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317(a)
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6.03 and 6.04
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317(b)
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4.03(a)
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318(a)
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15.07
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Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA,
which provides that the provisions of Sections 310 to and including Section 317 of the TIA are a part of and govern every qualified
indenture, whether or not physically contained therein.
TABLE OF CONTENTS
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Page
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Article 1
DEFINITIONS
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1
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SECTION 1.01. Definitions
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1
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Article 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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6
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SECTION 2.01. Amount Unlimited; Issuable in Series
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6
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SECTION 2.02. Form of Trustee’s Certificate of Authentication
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7
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SECTION 2.03. Form of Securities Generally; Establishment of Terms of Series
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7
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SECTION 2.04. Securities in Global Form
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10
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SECTION 2.05. Denominations; Record Date; Payment of Interest
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11
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SECTION 2.06. Execution, Authentication, Delivery and Dating of Securities
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12
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SECTION 2.07. Exchange and Registration of Transfer of Securities
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14
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SECTION 2.08. Temporary Securities
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17
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SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities and Coupons
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18
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SECTION 2.10. Cancellation
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19
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SECTION 2.11. Book Entry Only System
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19
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Article 3
REDEMPTION OF SECURITIES
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20
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SECTION 3.01. Redemption of Securities, Applicability of Section
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20
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SECTION 3.02. Notice of Redemption, Selection of Securities
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20
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SECTION 3.03. Payment of Securities Called for Redemption
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21
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SECTION 3.04. Redemption Suspended During Event of Default
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22
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Article 4
PARTICULAR COVENANTS OF THE COMPANY
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23
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SECTION 4.01. Payment of Principal, Premium and Interest
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23
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SECTION 4.02. Offices for Notices and Payments, etc.
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23
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SECTION 4.03. Provisions as to Paying Agent
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24
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SECTION 4.04. Statement as to Compliance
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25
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SECTION 4.05. Corporate Existence
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26
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SECTION 4.06. Reserved
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26
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SECTION 4.07. Waiver of Covenants
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26
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Article 5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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26
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SECTION 5.01. Securityholder Lists
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26
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SECTION 5.02. Preservation and Disclosure of Lists
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27
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SECTION 5.03. Reports by the Company
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27
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SECTION 5.04. Reports by the Trustee
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27
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Article 6
REMEDIES
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28
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SECTION 6.01. Events of Default; Acceleration of Maturity
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28
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SECTION 6.02. Rescission and Annulment
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29
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SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee
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30
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SECTION 6.04. Trustee May File Proofs of Claim
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31
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SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities or Coupons
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31
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SECTION 6.06. Application of Money Collected
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32
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SECTION 6.07. Limitation on Suits
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32
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SECTION 6.08. Unconditional Right of Securityholders to Receive Principal and Interest
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33
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SECTION 6.09. Restoration of Rights and Remedies
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33
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SECTION 6.10. Rights and Remedies Cumulative
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33
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SECTION 6.11. Delay or Omission Not Waiver
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33
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SECTION 6.12. Control by Securityholders
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34
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SECTION 6.13. Waiver of Past Defaults
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34
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SECTION 6.14. Undertaking for Costs
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35
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SECTION 6.15. Waiver of Stay or Extension Laws
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35
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Article 7
CONCERNING THE TRUSTEE
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35
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SECTION 7.01. Duties and Responsibilities of Trustee
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35
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SECTION 7.02. Reliance on Documents, Opinions, etc.
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36
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SECTION 7.03. No Responsibility for Recitals, etc.
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38
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SECTION 7.04. Ownership of Securities
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38
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SECTION 7.05. Moneys to be Held in Trust
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38
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SECTION 7.06. Compensation and Expenses of Trustee
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38
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SECTION 7.07. Officer’s Certificate as Evidence
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39
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SECTION 7.08. Disqualifications; Conflicting Interest of Trustee
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39
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SECTION 7.09. Eligibility of Trustee
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40
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SECTION 7.10. Resignation or Removal of Trustee
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40
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SECTION 7.11. Acceptance by Successor Trustee
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41
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SECTION 7.12. Successor by Merger, etc.
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42
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SECTION 7.13. Limitations on Rights of Trustee as Creditor
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42
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SECTION 7.14. Notice of Default
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42
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SECTION 7.15. Appointment of Authenticating Agent
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43
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Article 8
CONCERNING THE SECURITYHOLDERS
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44
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SECTION 8.01. Action by Securityholders
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44
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SECTION 8.02. Proof of Execution by Securityholders
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45
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SECTION 8.03. Who Are Deemed Absolute Owners
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45
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SECTION 8.04. Company-Owned Securities Disregarded
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46
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SECTION 8.05. Revocation of Consents; Future Securityholders Bound
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46
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SECTION 8.06. Record Date
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47
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Article 9
SECURITYHOLDERS’ MEETINGS
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47
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SECTION 9.01. Purposes of Meeting
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47
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SECTION 9.02. Call of Meetings by Trustee
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47
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SECTION 9.03. Call of Meetings by Company or Securityholders
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48
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SECTION 9.04. Qualifications for Voting
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48
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SECTION 9.05. Regulations
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48
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SECTION 9.06. Voting
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49
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Article 10
SUPPLEMENTAL INDENTURES
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49
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SECTION 10.01. Supplemental Indentures without Consent of Securityholders
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49
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SECTION 10.02. Supplemental Indentures with Consent of Holders
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51
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SECTION 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures
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52
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SECTION 10.04. Notation on Securities
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52
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Article 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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52
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SECTION 11.01. Company May Consolidate, etc., on Certain Terms
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52
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SECTION 11.02. Successor Corporation Substituted
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53
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SECTION 11.03. Opinion of Counsel and Officer’s Certificate to be Given Trustee
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53
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Article 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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53
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SECTION 12.01. Discharge of Indenture
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53
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SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee
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54
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SECTION 12.03. Paying Agent to Repay Moneys Held
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54
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SECTION 12.04. Return of Unclaimed Moneys
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55
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Article 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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55
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SECTION 13.01. Indenture and Securities Solely Corporate Obligations
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55
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Article 14
DEFEASANCE AND COVENANT DEFEASANCE
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55
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SECTION 14.01. Applicability of Article
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55
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SECTION 14.02. Defeasance and Discharge
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56
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SECTION 14.03. Covenant Defeasance
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56
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SECTION 14.04. Conditions to Defeasance or Covenant Defeasance
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56
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SECTION 14.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
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58
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Article 15
MISCELLANEOUS PROVISIONS
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59
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SECTION 15.01. Benefits of Indenture Restricted to Parties and Securityholders
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59
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SECTION 15.02. Provisions Binding on Company’s Successors
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59
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SECTION 15.03. Addresses for Notices, etc., to Company and Trustee
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59
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SECTION 15.04. Notice to Holders of Securities; Waiver
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59
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SECTION 15.05. Evidence of Compliance with Conditions Precedent
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60
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SECTION 15.06. Legal Holidays
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61
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SECTION 15.07. Trust Indenture Act to Control
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61
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SECTION 15.08. Execution in Counterparts
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61
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SECTION 15.09. Governing Law; Waiver of Jury Trial
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61
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SECTION 15.10. Severability
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61
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SECTION 15.11. Interpretations
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62
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SECTION 15.12. U.S.A. Patriot Act
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62
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SECTION 15.13. Force Majeure
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62
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SECTION 15.14. Jurisdiction
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62
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Article 16
SUBORDINATION OF SECURITIES
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63
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SECTION 16.01. Securities Subordinate to Senior Indebtedness
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63
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THIS INDENTURE, dated as of [_____________,______]
between Simmons First National Corporation, a corporation duly organized and existing under the laws of the State of Arkansas (the
“Company”), and Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee,”
which term shall include any successor trustee appointed pursuant to Article 7 of this Indenture).
WHEREAS, the Company deems it necessary to issue
from time to time for its lawful purposes securities (the “Securities”) evidencing its indebtedness and has duly authorized
the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as
to principal amount, to bear such rates of interest, to mature at such time or times, and to have such other provisions as shall
be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts
and things necessary to constitute these presents a valid indenture and agreement according to its terms have been done and performed,
and the execution of this Indenture has in all respects been duly authorized, and the Company, in the exercise of legal right and
power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon
which the Securities are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance
of the Securities by the holders thereof and of the sum of One Dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders from time to time of the Securities, as follows:
Article
1
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939 or that are by reference therein defined in the Securities Act of 1933 shall have the
meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the
Trust Indenture Act of 1939 or in the Securities Act of 1933, as applicable, in each case as in force at the date of this Indenture
as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms
in accordance with United States generally accepted accounting principles, and the term “generally accepted accounting principles”
means such accounting principles as are generally accepted at the time of any computation. The words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
“Additional Amounts” shall mean any
additional amounts to be paid by the Company in respect of Securities of a series, as may be specified pursuant to Section 2.03(b)
hereof and in such Security and under the circumstances specified therein, in respect of specified taxes, assessments or other
governmental charges imposed on certain holders who are United States Aliens.
“Authorized Newspaper” shall mean
a newspaper (which, in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger Wort) of general circulation in the place of publication, published
in an official language of the country of publication and customarily published at least once a day for at least five days in each
calendar week. Whenever successive weekly publications in an Authorized Newspaper are authorized or required hereunder, they may
be made (unless otherwise provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.
“Authorized Officer” shall have the
meaning set forth in Section 3.02 hereof.
“Bearer Security” shall mean any Security
established pursuant to Section 2.01 and Section 2.03(b) hereof which is payable to bearer (including without limitation any Security
in temporary or permanent global bearer form) and title to which passes by delivery only, but does not include any coupons.
“Board of Directors” or “Board”
shall mean the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” shall mean a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors or by a
committee acting under authority of or appointment by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
“Business Day” shall mean, unless
otherwise specified pursuant to Section 2.03(b), with respect to any Place of Payment or any other particular location referred
to in this Indenture or in the Securities, a day that in the city (or in any one of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized or required by
law or regulation to be closed.
“Capital Stock” shall mean, as to
shares of a particular corporation, outstanding shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate
in dividends and in the distribution of assets upon the voluntary liquidation, dissolution or winding up of such corporation.
“Commission” shall mean the Securities
and Exchange Commission or any successor agency.
“Company” shall mean the person named
as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request,” “Company
Order” and “Company Consent” mean, respectively, a written request, order or consent signed in the name of the
Company by its Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer and delivered to the Trustee.
“Corporate Trust Office” shall mean
the designated office of the Trustee at which, at any particular time, its corporate trust business relating to this Indenture
shall be administered, which office at the date hereof is located at 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Simmons First National Corporation Administrator, or such other address as the Trustee may designate from time to time by notice
to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Company).
“coupon” shall mean any interest coupon
appertaining to a Bearer Security.
“Default” or “default”
shall have the meaning specified in Article 6.
“Dollar” or “$” shall
mean a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
“Event of Default” shall have the
meaning specified in Article 6.
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended.
“Exchange Date” shall have the meaning
set forth in Section 2.08.
“holder,” “holder of Securities,”
“securityholder” or other similar term shall mean (a) in the case of any Registered Security, the person in whose name
such Security is registered in the Security Register kept by the Company for that purpose, in accordance with the terms hereof,
and (b) in the case of any Bearer Security, the bearer thereof, and as used with respect to any coupon appertaining to any Bearer
Security, the term “holder” shall mean the bearer thereof.
“Indenture” shall mean this instrument
as originally executed and delivered or as it may from time to time be supplemented or amended by one or more supplemental indentures
hereto entered into pursuant to the applicable provisions hereof, including without limitation, the forms and terms of particular
series of Securities established as contemplated by Article 2.
“Material Subsidiary” means Simmons
Bank, or any successor thereof or any Subsidiary of the Company that is a depository institution and that has consolidated assets
equal to 80% or more of the Company’s consolidated assets.
“Officer’s Certificate” shall
mean a certificate signed by the Chief Executive Officer, Chief Financial Officer, Assistant Secretary, Treasurer or Controller
of the Company and delivered to the Trustee.
“Opinion of Counsel” shall mean an
opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall be reasonably satisfactory
to the Trustee, or who may be other counsel reasonably satisfactory to the Trustee.
“Original Issue Discount Securities”
shall mean any Securities that are initially sold at a discount from the principal amount thereof and that provide upon an Event
of Default for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“Outstanding” or “outstanding,”
when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated and held in trust by
the Company (if the Company shall act as its own paying agent) for the holders of such Securities and any coupons appertaining
thereto; provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving
such notice;
(c) Securities
that have been defeased pursuant to Section 14.02 hereof; and
(d) Securities
that have been paid pursuant to Section 2.09, or Securities in exchange for, in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is
presented that any such Securities are held by bona fide holders in due course.
“Periodic Offering” shall mean an
offering of Securities of a series, from time to time, the specific terms of which (including, without limitation, the rate or
rates of interest or formula for determining the rate or rates of interest thereon, if any, the maturity date or dates thereof
and the redemption provisions, if any, with respect thereto) are to be determined by the Company upon the issuance of such Securities.
“Person” or “person” shall
mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used with
respect to the Securities of any series, means the place or places where, subject to the provisions of Section 4.02, the principal
of (and premium, if any, on) and any interest on the Securities of that series are payable as specified as contemplated by Section
2.03(b).
“Possessions,” when used with respect
to the United States, shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands.
“record date” as used with respect
to any interest payment date shall have the meaning specified in Section 2.05.
“Registered Security” shall mean any
Security established pursuant to Section 2.01 and Section 2.03(b) that is registered on the Security Register of the Company.
“Responsible Officer,” when used with
respect to the Trustee, shall mean any officer of the Trustee assigned to the global capital markets group (or any successor group)
of the Trustee located in its Corporate Trust Office and also shall mean, with respect to a particular corporate trust matter,
any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular
subject, in each case, who has direct responsibility for the administration of this Indenture.
“Securities” shall have the meaning
set forth in the preamble of this Indenture.
“Securities Act” shall mean the Securities
Act of 1933, as amended.
“Security Register” and “Security
Registrar” shall have the respective meanings set forth in Section 2.07(a) hereof.
“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 relating to the Company 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 of the Company, whether any such indebtedness exists as of the date of the Indenture or is
created, incurred or assumed after such date: (i) all obligations for borrowed money, (ii) all obligations evidenced by debentures,
Securities or other similar instruments, (iii) all obligations in respect of letters of credit or bankers acceptances or similar
instruments (or reimbursement obligations with respect thereto), (iv) all obligations to pay the deferred purchase price of property
or services, except trade accounts payable arising in the ordinary course of business, (v) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries is legally responsible or liable
(whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others), (vi) 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, (vii) obligations
associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity
contracts, and similar arrangements, (viii) purchase money and similar obligations, (ix) interest or obligations in respect of
any of the foregoing accruing after the commencement of insolvency or bankruptcy proceedings, and (x) any renewals, extensions,
refundings or replacements of any of the foregoing.
“Subsidiary” shall mean, in respect
of any Person, any corporation, association, partnership, limited liability company or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or
(c) one or more Subsidiaries of such Person.
“Trust Indenture Act,” except as otherwise
provided in this Indenture, shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as
originally executed.
“Trustee” shall mean the person identified
as “Trustee” in the first paragraph hereof until the acceptance of appointment of a successor trustee pursuant to the
provisions of Article 7, and thereafter shall mean such successor trustee.
“United States Alien” shall mean any
person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership to the extent that one or more of its members is, for United
States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of
a foreign estate or trust
“U.S. Depositary” shall mean, with
respect to the Securities of any series issuable or issued in whole or in part in the form of one or more permanent global Securities,
the person designated as U.S. Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency registered
under the Exchange Act, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “U.S. Depositary” shall mean or include each person who is then a U.S. Depositary hereunder,
and if at any time there is more than one such person, “U.S. Depositary” as used with respect to the Securities of
any series shall mean the U.S. Depositary with respect to the Securities of such series.
“Vice President” when used with respect
to the Company or the Trustee shall mean any vice president, whether or not designated by a number or word or words added before
or after the title “vice president,” including any Executive or Senior Vice President.
Article
2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable
in Series.
Upon the execution of this Indenture, or from
time to time thereafter, Securities up to the aggregate principal amount and containing terms and conditions from time to time
authorized by or pursuant to a Board Resolution, or in a supplemental indenture, as set forth in Section 2.03, may be executed
by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and make available
for delivery the Securities to or upon Company Order, without any further action by the Company but subject to the provisions of
Section 2.03, or in a supplemental indenture, as set forth in Section 2.03.
The Securities may be issued in one or more series.
The aggregate principal amount of Securities of all series that may be authenticated and delivered and outstanding under this Indenture
is not limited hereunder. The Securities of a particular series may be issued up to the aggregate principal amount of Securities
for such series from time to time authorized by or pursuant to a Board Resolution.
SECTION 2.02. Form of Trustee’s Certificate
of Authentication.
The Trustee’s certificate of authentication
shall be in substantially the following form:
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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Dated:
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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as Trustee
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By: Authorized Signatory
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SECTION 2.03. Form of Securities Generally;
Establishment of Terms of Series.
(a) The
Registered Securities, if any, of each series, the Bearer Securities, if any, of each series and related coupons, if any, the temporary
global Securities of each series, if any, and the permanent global Securities of each series, if any, shall be in the forms established
from time to time in or pursuant to one or more Board Resolutions (and, to the extent established pursuant to rather than set forth
in one or more Board Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the
relevant Board Resolution(s)) detailing such establishment) or established in an indenture supplemental hereto.
The Securities may be issued in typewritten, printed
or engraved form with such letters, numbers or other marks of identification or designation (including “CUSIP” numbers,
if then generally in use) and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed,
or to conform to usage. Unless otherwise specified as contemplated hereinafter, Securities in bearer form shall have interest coupons
attached.
(b) At
or prior to the initial issuance of Securities of any series, the particular terms of Securities of such series shall be established
in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in one or more
Board Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the relevant Board
Resolutions(s)) detailing such establishment) or established in a supplemental indenture, including the following:
(1) the
designation of the particular series (which shall distinguish such series from all other series);
(2) the
price or prices (which may be expressed as a percentage of the aggregate principal amount of the Securities being issued) at which
the Securities of the series will be issued;
(3) the
aggregate principal amount of such series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to this Indenture and except for any Securities which, pursuant to Section 2.06, are deemed never to have been authenticated
and delivered hereunder);
(4) whether
Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, whether
any Securities of the series are to be issuable initially in temporary global form with or without coupons and, if so, the name
of the U.S. Depositary with respect to any such temporary global Security, and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.06 and the name of
the U.S. Depositary with respect to any such permanent global Security;
(5) the
date as of which any Bearer Securities of such series and any temporary Security in global form representing Outstanding Securities
of such series shall be dated, if other than the date of original issuance of the first Securities of the series to be issued;
(6) the
person to whom any interest on any Registered Security of the series shall be payable, if other than the person in whose name that
Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest,
the manner in which, or the person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as they severally mature, the extent to which, or the manner
in which, any interest payable on a temporary global Security on an interest payment date will be paid if other than in the manner
provided in Section 2.08 and the extent to which, or the manner in which, any interest payable on a permanent global Security on
an interest payment date will be paid;
(7) the
date or dates on which the principal of the Securities of such series is payable;
(8) the
rate or rates, and if applicable the method used to determine the rate, at which the 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 Registered Securities on any interest payment date;
(9) the
place or places at which, subject to the provisions of Section 4.02, the principal of (and premium, if any, on) and any interest
on Securities of such series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(10) the
obligation, if any, of the Company to redeem or purchase 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 Securities of the series may be so redeemed or purchased, in whole or
in part;
(11) if
other than minimum denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities
of such series shall be issuable, and the denomination or denominations in which any Bearer Securities of the series shall be issuable,
if other than the minimum denomination of $5,000;
(12) if
other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable
upon declaration of acceleration of the maturity thereof;
(13) the
currency, currencies or currency units in which payment of the principal of (and premium, if any, on) and any interest on any Securities
of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section
1.01;
(14) if
the principal of (and premium, if any, on) or any interest on the Securities of the series are to be payable, at the election of
the Company or a holder thereof, in one or more currencies or currency units, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any, on) and any interest
on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(15) if
the amount of payments of principal of (and premium, if any, on) or any interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be determined;
(16) whether
the Securities will be issued in book-entry only form;
(17) any
interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(18) if
either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(19) whether
and under what circumstances the Company will pay Additional Amounts in respect of any series of Securities and whether the Company
has the option to redeem such Securities rather than pay such Additional Amounts;
(20) any
provisions relating to the extension of maturity of, or the renewal of, Securities of such series, or the conversion of Securities
of such series into other securities of the Company;
(21) any
provisions relating to the purchase or redemption of all or any portion of a tranche or series of Securities, including the period
of notice required to redeem those Securities;
(22) the
terms and conditions, if any, pursuant to which the Securities of the series are secured;
(23) the
subordination terms of the Securities of the series; and
(24) any
other terms of the Securities or provisions relating to the payment of principal of, premium (if any), or interest thereon, including,
but not limited to, whether such Securities are issuable at a discount or premium, as amortizable Securities, and if payable in,
convertible or exchangeable for commodities or for the securities of the Company or any third party.
All Securities of any one series need not be issued
at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant
to the Board Resolution or Officer’s Certificate referred to above or as set forth in a supplemental indenture, and, unless
otherwise provided, the authorized principal amount of any series may be increased to provide for issuances of additional Securities
of such series. If so provided by or pursuant to the Board Resolution or Officer’s Certificate or supplemental indenture
referred to above, the terms of such Securities to be issued from time to time may be determined as set forth in such Board Resolution,
Officer’s Certificate or supplemental indenture, as the case may be. All Securities of any one series shall be substantially
identical except as to denomination, interest rate, maturity and other similar terms and except as may be provided otherwise by
or pursuant to such Board Resolution, Officer’s Certificate or supplemental indenture.
SECTION 2.04. Securities in Global Form.
If Securities of a series are issuable in global
form, as specified as contemplated by Section 2.03(b), then, notwithstanding clause (10) of Section 2.03(b) and the provisions
of Section 2.05, any such Security in global form shall represent such of the Securities of such series Outstanding as shall be
specified therein, and any such Security in global form may provide that it shall represent the aggregate amount of Securities
Outstanding from time to time endorsed thereon and that the aggregate amount of Securities Outstanding represented thereby may
from time to time be reduced to reflect any exchanges of beneficial interests in such Security in global form for Securities of
such series as contemplated herein. Any endorsement of a Security in global form to reflect the amount, or any decrease in the
amount, of Securities Outstanding represented thereby shall be made by the Trustee or the Security Registrar in such manner and
upon instructions given by such person or persons as shall be specified in such Security in global form or in the Company Order
to be delivered to the Trustee pursuant to Section 2.06 or Section 2.08. Subject to the provisions of Section 2.06 and, if applicable,
Section 2.08, the Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the person or persons specified in such Security in global form or in the applicable Company Order.
If a Company Order pursuant to Section 2.06 or Section 2.08 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not be
represented by a Company Order and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section
2.06 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions
(which need not be represented by a Company Order and need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence
of Section 2.06.
Notwithstanding the provisions of Section 2.05,
unless otherwise specified as contemplated by Section 2.03(b), payment of principal of and any premium and interest on any Security
in permanent global form shall be made to the persons or persons specified therein.
SECTION 2.05. Denominations; Record Date;
Payment of Interest.
(a) Unless
otherwise provided as contemplated by Section 2.03(b) with respect to any series of Securities, any Registered Securities of a
series shall be issuable without coupons in minimum denominations of $1,000 and any Bearer Securities of a series shall be issuable,
with interest coupons attached, in the minimum denomination of $5,000.
(b) The
term “record date” as used with respect to an interest payment date for any series of a Registered Security shall mean
such day or days as shall be specified as contemplated by Section 2.03(b); provided, that in the absence of any such provisions
with respect to any series, such term shall mean (1) the last day of the calendar month next preceding such interest payment date
if such interest payment date is the 15th day of a calendar month; or (2) the 15th day of a calendar month next preceding such
interest payment date if such interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated by Section
2.03 with respect to any series of Securities, the person in whose name any Registered Security is registered at the close of business
on the record date with respect to an interest payment date shall be entitled to receive the interest payable on such interest
payment date notwithstanding the cancellation of such Security upon any registration of transfer or exchange thereof subsequent
to such record date prior to such interest payment date; provided, that if and to the extent the Company shall default in the payment
of the interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose names the Securities
are registered on a subsequent record date established by notice given to the extent and in the manner set forth in Section 15.04
by or on behalf of the Company to the holders of Securities of the series in default not less than 15 days preceding such subsequent
record date, such record date to be not less than five days preceding the date of payment of such defaulted interest, or in any
other lawful manner acceptable to the Trustee.
(c) Unless
otherwise specified by Board Resolution or Company Order for a particular series of Securities, the principal of, redemption premium,
if any, on and interest, if any, on the Securities of any series shall be payable at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series, in the coin or currency of the United States of America that at
the time is legal tender for public and private debt; provided, that, at the option of the Company, payment of interest with respect
to a Registered Security may be paid by check mailed to the holders of the Registered Securities entitled thereto at their last
addresses as they appear on the Security Register or wired if held in book-entry form at the U.S. Depositary.
SECTION 2.06. Execution, Authentication,
Delivery and Dating of Securities
The Securities shall be signed on behalf of the
Company by its Chief Executive Officer, its President or one of its Vice Presidents. Such signatures may be the manual or facsimile
signatures of such then current officers.
Coupons shall bear the facsimile signature of
the Secretary or one of the Assistant Secretaries of the Company or such other officer of the Company as may be specified pursuant
to Section 2.03(b). Any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture
any such person was not such officer. Securities and coupons bearing the manual or facsimile signatures of individuals who were,
at the actual date of the execution of such Security or coupon, the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities,
or the delivery of such coupons, as the case may be, or did not hold such offices at the date of such Securities.
Upon the execution and delivery of this Indenture,
the Company shall deliver to the Trustee an Officer’s Certificate as to the incumbency and specimen signatures of officers
authorized to execute and deliver the Securities and coupons and give instructions under this Section and, as long as Securities
are Outstanding under this Indenture, shall deliver a similar Officer’s Certificate each year on the anniversary of the date
of the first such Officer’s Certificate. The Trustee may conclusively rely on the documents delivered pursuant to this Section
(unless revoked by superseding comparable documents) and Section 2.03 hereof as to the authorization of the Board of Directors
of any Securities delivered hereunder, and the form and terms thereof, and as to the authority of the instructing officers referred
to in this Section so to act.
The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in an unlimited aggregate principal amount upon receipt by the Trustee of a Company
Order; provided, that with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order may be delivered
to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate
and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount, if any, established for such series, pursuant to a Company Order or pursuant to such procedures acceptable
to the Trustee as may be specified from time to time by a Company Order and (c) the maturity date or dates, original issue date
or dates, interest rate or rates and any other terms of Securities of such series shall be determined by Company Order or pursuant
to such procedures. Except as permitted by Section 2.09, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any new
series and any related coupons, and the authentication thereof by the Trustee, the Trustee shall have received and (subject to
Section 7.02) shall be fully protected in relying on:
(a) The
Board Resolution or Officer’s Certificate or supplemental indenture establishing the terms and the form of the Securities
of that series pursuant to Section 2.01 and Section 2.03;
(b) An
Officer’s Certificate stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities in such form have been complied with;
(c) An
Opinion of Counsel stating that the form and terms of such Securities and coupons, if any, have been established in conformity
with the provisions of this Indenture; provided, that with respect to Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication of Securities
of such series.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms
thereof and of any coupons and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
other documents delivered pursuant to this Section in connection with the first authentication of Securities of such series unless
and until such Opinion of Counsel or other documents have been superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s
instructions to authenticate and deliver such Securities do not violate any rules, regulations or orders of any governmental agency
or commission having jurisdiction over the Company.
Each Registered Security shall be dated the date
of its authentication except as otherwise provided by Board Resolution or Officer’s Certificate or supplemental indenture;
and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued unless
otherwise specified pursuant to Section 2.03 hereof.
The aggregate principal amount of Securities of
any series outstanding at any time may not exceed any limit upon the maximum principal amount for such series set forth in or pursuant
to the Board Resolution or Officer’s Certificate or supplemental indenture delivered pursuant to Section 2.03, except as
provided in Section 2.08.
No Security or coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to
which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee
by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.09 together with a written statement stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration of
Transfer of Securities.
(a) The
Company shall keep, at an office or agency to be designated and maintained by the Company in accordance with Section 4.02 (as such,
a “Security Registrar”), registry books (the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register Registered Securities and shall register the transfer of Registered
Securities of each such series as provided in this Article 2. Such Security Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all reasonable times such Security Register shall be
open for inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of a particular
series at such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, the Company shall execute
and register and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a
new Registered Security or Registered Securities of such series of any authorized denominations and for an equal aggregate principal
amount and tenor.
(b) At
the option of the holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series
of any authorized denominations and of an equal aggregate principal amount and tenor. Registered Securities to be exchanged shall
be surrendered at any such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, and the
Company shall execute and register and the Trustee shall authenticate and make available for delivery in exchange therefor the
Security or Securities that the securityholder making the exchange shall be entitled to receive. Registered Securities, including
Registered Securities received in exchange for Bearer Securities, may not be exchanged for Bearer Securities, unless the Company
otherwise expressly provides for the issuance, upon such terms and conditions as may be provided with respect to such series, by
the Company of Registered Securities of a series that may be exchanged, at the option of the securityholder upon such conditions
and limitations as may be specified by the Company, for Bearer Securities of such series.
At the option of the holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons (except as provided below) and with all matured coupons in default appertaining thereto. If the holder of a Bearer Security
is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require to save each of them and any paying agent harmless.
If thereafter the holder of such Securities shall surrender to any paying agent any such missing coupon in respect of which such
a payment shall have been made, such holder shall be entitled to receive the amount of such payment; provided, that, except as
otherwise provided in Section 4.02, interest represented by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States and its possessions. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series
and like tenor after the close of business at such office or agency on (i) any record date and before the opening of business at
such office or agency on the relevant interest payment date, or (ii) any special record date and before the opening of business
at such office or agency on the related proposed date for payment of defaulted interest as set forth in Section 2.05, such Bearer
Security shall be surrendered without the coupon relating to such interest payment date or proposed date for payment, as the case
may be, and interest or defaulted interest, as the case may be, will not be payable on such interest payment date or proposed date
for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute and register, and the Trustee shall authenticate and make available for delivery, the Securities
which the holder making the exchange is entitled to receive.
(c) All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
All Registered Securities presented for registration
of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the Company or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Security Registrar duly executed by, the holder thereof or his or her attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith, other than exchanges pursuant to the terms of this Indenture not involving
any transfer.
The Company shall not be required (1) to exchange
or register the transfer of Securities of any series to be redeemed for a period of 15 days next preceding any selection of such
Securities to be redeemed, or (2) to exchange or register the transfer of any Registered Security so selected, called or being
called for redemption, except in the case of any such series to be redeemed in part the portion thereof not to be so redeemed,
or (3) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and of like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
(d) Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 2.03(b), any permanent global Security shall be exchangeable
pursuant to this Section only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security
are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 2.03(b), then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee or the Security Registrar
definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent global Security
executed by the Company. On or after the earliest date on which such interests may be so exchanged, in accordance with instructions
given by the Company to the Trustee or the Security Registrar and the U.S. Depositary, as the case may be (which instructions shall
be in writing), such permanent global Security shall be surrendered from time to time by the U.S. Depositary, as the case may be,
or such other depositary or U.S. Depositary, as the case may be, as shall be specified in the Company Order with respect thereto
to the Trustee, as the Company’s agent for such purpose, or to the Security Registrar, to be exchanged, in whole or in part,
for definitive Securities of the same series without charge and the Trustee shall authenticate and make available for delivery
in accordance with such instructions, in exchange for each portion of such permanent global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which (unless the Securities of the series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the permanent global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by Section 2.03(b)), shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, that no
such exchanges may occur for a period of 15 days next preceding any selection of Securities of that series and of like tenor for
redemption; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global security shall
be mailed or otherwise delivered to any location in the United States or its possessions. Promptly following any such exchange
in part, such permanent global Security should be returned by the Trustee or the Security Registrar to the U.S. Depositary, as
the case may be, or such other depositary or U.S. Depositary referred to above in accordance with the instructions of the Company
referred to above. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close
of business at the office or agency where such exchange occurs on (i) any record date and before the opening of business at such
office or agency on the relevant interest payment date, or (ii) any special record date and before the opening of business at such
office or agency on the related proposed date for payment of defaulted interest as provided in Section 2.05, interest or defaulted
interest, as the case may be, will not be payable on such interest payment date or proposed date for payment, as the case may be,
in respect of such Registered Security, but will be payable on such interest payment date or proposed date for payment, as the
case may be, only to the person to whom interest in respect of such portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
SECTION 2.08. Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall, upon Company Order, authenticate and make available for delivery,
temporary Securities of such series (typewritten, printed, lithographed or otherwise produced). Such temporary Securities, in any
authorized denominations, shall be substantially in the form of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more or without coupons, in the form approved from time to time by
or pursuant to a Board Resolution but with such omissions, insertions, substitutions and other variations as may be appropriate
for temporary Securities, all as may be determined by the Company, but not inconsistent with the terms of this Indenture or any
provision of applicable law. In the case of any series issuable as Bearer Securities, such temporary Securities shall be delivered
only in compliance with the conditions set forth in Section 2.06 and may be in global form.
Except in the case of temporary Securities in
global form (which shall be exchanged as hereinafter provided), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section 4.02 in a Place
of Payment for such series for the purpose of exchanges of Securities of such series, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto),
the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like aggregate
principal amount of definitive Securities of the same series and of like tenor of authorized denominations; provided, that, except
as otherwise expressly provided by the Company as contemplated in Section 2.07(b), no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further, however, that a definitive Bearer Security shall be delivered
in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 2.06.
Without unnecessary delay but in any event not
later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the “Exchange
Date”), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal amount equal
to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary
global Security shall be presented and surrendered by the U.S. Depositary to the Trustee, as the Company’s agent for such
purpose, or to the Security Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities of such
series without charge, and the Trustee shall authenticate and make available for delivery, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be exchanged.
Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities.
SECTION 2.09. Mutilated, Destroyed, Lost
or Stolen Securities and Coupons
If any mutilated Security or a Security with a
mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute and the Trustee shall authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or coupon; provided, however, that principal of (and premium, if any, on) and any interest on
Bearer Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located outside the
United States and its possessions.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security
to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 2.10. Cancellation.
All Securities surrendered for payment, redemption,
exchange or registration of transfer or for credit against any sinking fund payment, as the case may be, and any coupons surrendered
for payment, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All
Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee, and upon instruction by a Company Order, shall be cancelled or held for reissuance.
All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered
for cancellation for all purposes of this Indenture and the Securities. The Company may deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other person for delivery to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section except
as expressly provided by this Indenture. Any cancelled Securities and coupons held by the Trustee shall be destroyed by the Trustee
in accordance with its customary procedures. Upon written request in the form of a Company Order, the Company may direct the Trustee
to deliver a certificate of such destruction to the Company.
SECTION 2.11. Book Entry Only System.
If specified by the Company pursuant to Section
2.03(b) with respect to Securities represented by a Security in global form, a series of Securities may be issued initially in
book-entry only form and, if issued in such form, shall be represented by one or more Securities in global form registered in the
name of the U.S. Depositary or other depositary designated with respect thereto. So long as such system of registration is in effect,
(a) Securities of such series so issued in book-entry only form will not be issuable in the form of or exchangeable for Securities
in certificated or definitive registered form, (b) the records of the U.S. Depositary or such other depositary will be determinative
for all purposes and (c) neither the Company, the Trustee nor any paying agent, Security Registrar or transfer agent for such Securities
will have any responsibility or liability for (i) any aspect of the records relating to or payments made on account of owners of
beneficial interests in the Securities of such series, (ii) maintaining, supervising or reviewing any records relating to such
beneficial interests, (iii) receipt of notices, voting and requesting or directing the Trustee to take, or not to take, or consenting
to, certain actions hereunder, or (iv) the records and procedures of the U.S. Depositary, or such other depositary, as the case
may be.
Article
3
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities, Applicability
of Section.
Redemption of Securities of any series as permitted
or required by the terms thereof shall be made in accordance with the terms of such Securities as specified pursuant to Section
2.03 hereof and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision
of this Section, the provision of such series of Securities shall govern.
SECTION 3.02. Notice of Redemption, Selection
of Securities.
In case the Company shall desire to exercise the
right to redeem all or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date for
redemption. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company, or,
at the Company’s request, by the Trustee in the name and at the expense of the Company. The Company or the Trustee, as the
case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, on that date prior
to the date fixed for a redemption to the holders of such Securities so to be redeemed, as a whole or in part, (a) as set forth
in a Board Resolution, as described in Section 2.03, or (b) as determined by the Chief Executive Officer, the Chief Financial Officer,
the Treasurer or the Controller of the Company (each, an “Authorized Officer”) and evidenced by the preparation of
an offering document or an Officer’s Certificate specifying the period of notice of such redemption. If the Board Resolutions
or an Authorized Officer do not specify a period of notice of such redemption, the Company or the Trustee, as the case may be,
shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, at least 10 Business Days and
not more than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as
a whole or in part. Notice given in such manner shall be conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice or any defect in the notice to the holder of any such Security designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security.
If the Company requests the Trustee to give any notice of redemption, it shall make such request at least ten days prior to the
designated date for delivering such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the
date fixed for redemption, the redemption price at which such Securities are to be redeemed, the CUSIP numbers of such Securities,
the Place of Payment where such Securities, together, in the case of Bearer Securities, with all coupons appertaining thereto,
if any, maturing after the date of redemption, are to be surrendered for payment of the redemption prices, that payment will be
made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as
specified in the notice, and that on and after the date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all of a series is to be redeemed, the notice of redemption shall specify the numbers of the Securities to
be redeemed. In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities of the same series
in principal amount equal to the unredeemed portion thereof will be issued.
On or before the redemption date specified in
the notice of redemption given as provided in this Section, the Company will deposit in trust with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called
for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. If
less than all of a series of Securities is to be redeemed, the Company will give the Trustee adequate written notice at least 45
days in advance (unless a shorter notice shall be satisfactory to the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, pro rata, by lot or in such other manner in its sole discretion it shall deem appropriate
and fair, not more than 60 days prior to the date of redemption, the numbers of such Securities Outstanding not previously called
for redemption, to be redeemed in whole or in part. The portion of principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof. The Trustee shall
promptly notify the Company of the Securities to be redeemed. If, however, less than all the Securities of a series having differing
issue dates, interest rates and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular
Securities of such series to be redeemed and shall notify the Trustee in writing at least 45 days prior to the relevant redemption
date.
SECTION 3.03. Payment of Securities Called
for Redemption.
If notice of redemption has been given as above
provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable
on the date and at the place stated in such notice at the applicable redemption price, together with any interest accrued to the
date fixed for redemption, and on and after that date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to that date) interest on such Securities or portions of Securities so called
for redemption shall cease to accrue and the coupons, if any, for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. On presentation and surrender of such Securities subject to redemption
at the Place of Payment and in the manner specified in such notice, together with all coupons, if any, appertaining thereto and
maturing after the date specified in such notice for redemption, such Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption;
provided, that installments of interest on Bearer Securities whose stated maturity date is on or prior to the date of redemption
shall be payable only at an office or agency located outside the United States and its possessions (except as otherwise provided
in Section 4.02) and, unless otherwise specified as contemplated by Section 2.03, only upon presentation and surrender of coupons
for such interest; and provided, further, that unless otherwise specified as contemplated by Section 2.03, installments of interest
on Registered Securities whose stated maturity date is on or prior to the date of redemption shall be payable to the holders of
such Registered Securities, or one or more predecessor Securities, registered as such at the close of business on the relevant
record dates according to their terms and the provisions of Section 2.05.
At the option of the Company, payment with respect
to Registered Securities may be made by check to the holders of such Securities or other persons entitled thereto against presentation
and surrender of such Securities.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the date of redemption, such Security may be paid after deducting
from the redemption price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If thereafter the holder of such Security shall surrender to the Trustee or
any paying agent any such missing coupon in respect of which a deduction shall have been made from the redemption price, such holder
shall be entitled to receive the amount so deducted; provided, that interest represented by coupons shall be payable only at an
office or agency located outside the United States and its possessions (except as otherwise provided in Section 4.02) and, unless
otherwise specified as contemplated by Section 2.03, only upon presentation and surrender of those coupons.
Any Security (including any coupons appertaining
thereto) that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder’s attorney duly authorized in writing), and upon such presentation, the Company shall
execute and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company,
a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the principal of the Security so presented. If a temporary global Security or permanent global Security is so surrendered,
such new Security so issued shall be a new temporary global Security or permanent global Security, respectively.
SECTION 3.04. Redemption Suspended During
Event of Default.
The Trustee shall not redeem any Securities (unless
all Securities then outstanding are to be redeemed) or commence the giving of any notice of redemption of Securities during the
continuance of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge or notice, except that where
the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem such Securities,
provided funds are deposited with it for such purpose. Except as aforesaid, any moneys theretofore or thereafter received by the
Trustee shall, during the continuance of such Event of Default, be held in trust for the benefit of the securityholders and applied
in the manner set forth in Section 6.06; provided, that in case such Event of Default shall have been waived as provided herein
or otherwise cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article.
Article
4
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium
and Interest.
The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any, on) and any interest on each of the Securities of a series at the place, at the
respective times and in the manner provided in the terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 2.03(b) with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on or before maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION 4.02. Offices for Notices and Payments,
etc.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities
of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the contiguous
United States, an office or agency where any Registered Securities of that series may be presented or surrendered for payment,
where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for
payment in the circumstances described below (and not otherwise), (b) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the United States and its possessions, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment; provided, that if the Securities of that series
are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and its possessions and such stock exchange shall so require,
the Company will maintain a paying agent for the Securities of that series in London, Luxembourg or any other required city located
outside the United States and its possessions, as the case may be, so long as the Securities of that series are listed on such
exchange, and (c) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located
outside the United States and its possessions, an office or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this Indenture may be served.
The Company will give to the Trustee notice of
the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain
any such office or agency as required, or shall fail to give such notice of the location or of any change in the location thereof,
presentations and surrenders of Securities of that series may be made and notices and demands may be served at the principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment at any paying agent for such series located outside the United States and its possessions.
No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the United States or its possessions or by check mailed
to any address in the United States or its possessions or by transfer to any account maintained with a financial institution located
in the United States or its possessions; provided, that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and any interest on any Bearer Security shall be made at the office of the Company’s
paying agent in the contiguous United States, if (but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies outside the United States and its possessions maintained
for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the holders of any
such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate
Trust Office as the office of the Company in the contiguous United States where Registered Securities may be presented for payment,
for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company
in respect of the Securities or of this Indenture may be served; provided, that the Corporate Trust Office shall not be an office
or agency of the Company for the service of legal process against the Company.
SECTION 4.03. Provisions as to Paying Agent.
(a) Whenever
the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that
it will hold sums held by it as such agent for the payment of the principal of (and premium, if any, on) or any interest on the
Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed
of as herein provided and will notify the Trustee of the receipt of sums to be so held;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of (or premium, if any, on) or any interest on the Securities of such series when the same shall be
due and payable; and
(3) that
at any time when any such failure has occurred and is continuing, it will, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent.
(b) If
the Company shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any) or
any interest on the Securities of any series, set aside, segregate and hold in trust for the benefit of the persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or any interest so becoming due until such sums shall be paid to such
persons or otherwise disposed of as herein provided. The Company will promptly notify the Trustee of any failure to take such action.
(c) Whenever
the Company shall have one or more paying agents with respect to a series of Securities, it will, on or prior to each due date
of the principal of (and premium, if any, on) or any interest on, any Securities, deposit with a paying agent a sum sufficient
to pay the principal (and premium, if any) or any interest, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
(d) Anything
in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such series by it or any paying agent hereunder as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained, and upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further liability with respect to such money.
(e) Anything
in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 12.03 and Section 12.04.
SECTION 4.04. Statement as to Compliance.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, commencing with the fiscal year ending in the year during which the
first series of Securities is issued hereunder (but in no event more than one year from the issuance of the first series hereunder),
a written statement signed by the Chief Executive Officer, President or other principal executive officer and by the Treasurer
or other principal financial officer or principal accounting officer of the Company, stating, as to each signer thereof, that:
(a) a
review of the activities of the Company during such year and of performance under this Indenture has been made under his or her
supervision; and
(b) to
the best of his or her knowledge, based on such review, the Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him
and the nature and status thereof.
SECTION 4.05. Corporate Existence.
Subject to the provisions of Article 11, the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises and the corporate existence and rights (charter and statutory) and franchises of its Subsidiaries;
provided, that the Company shall not be required to, or to cause any Subsidiary to, preserve any right or franchise or to keep
in full force and effect the corporate existence of any Subsidiary if the Company shall determine that the keeping in existence
or preservation thereof is no longer desirable in or consistent with the conduct of the business of the Company.
SECTION 4.06. Reserved.
SECTION 4.07. Waiver of Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition set forth herein if before or after the time for such compliance the holders of a majority
in principal amount of the Securities of all series affected thereby then Outstanding shall either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
Article
5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists.
The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee as the Trustee may request in writing a list, in such form and as of such date
as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and addresses
of the holders of Registered Securities of a particular series specified by the Trustee which list may be conclusively relied upon
by the Trustee; provided, that if and so long as the Trustee shall be the Security Registrar with respect to such series, such
list shall not be required to be furnished.
SECTION 5.02. Preservation and Disclosure
of Lists.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(b) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other securityholders with respect to their rights
under this Indenture or under the Securities. The Company, the Trustee, the Security Registrar and anyone else shall have the protection
of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant to a request made pursuant to
Section 312(b) of the Trust Indenture Act.
SECTION 5.03. Reports by the Company.
The Company covenants so long as Securities are
Outstanding:
(a) to
file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to
file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such rules and regulations; and
(c) to
transmit by mail to all the holders of Registered Securities of each series, as the names and addresses of such holders appear
on the registry books, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) On
or about [________________, _______], so long as any Securities are outstanding hereunder and if there has been any change in the
following, the Trustee shall transmit by mail, first class postage prepared, to the securityholders, as their names appear upon
the Security Register, a brief report dated as of the preceding [________________, _______], if and to the extent required under
Section 313(a) of the Trust Indenture Act, detailing certain events that occurred within the previous 12 months.
(b) The
Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any stock exchange.
Article
6
REMEDIES
SECTION 6.01. Events of Default; Acceleration
of Maturity.
In case one or more of the following Events of
Default with respect to a particular series shall have occurred and be continuing:
(a) default
in (i) the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon redemption, by declaration or otherwise or (ii) any payment required by any sinking
or analogous fund established with respect to that series; or
(b) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; or
(c) failure
on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained
in the Securities or in this Indenture for a period of 90 days after the date on which written notice of such failure, requiring
the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Securities of that series at the time Outstanding; or
(d) a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or the Material Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any Material Subsidiary
or for any substantial part of their respective property, or ordering the winding-up or liquidation of its affairs and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(e) the
Company or the Material Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law,
or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or similar official) of the Company or the Material Subsidiary or for any substantial part of their respective property, or shall
make any general assignment for the benefit of creditors; or
(f) any
other Event of Default provided with respect to Securities of that series;
then, if an Event of Default described in clause
(a), (b), (c), or (f) shall have occurred and be continuing, and in each and every such case, unless the principal amount of all
the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by securityholders) may declare the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of that series to be due and
payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Securities of such series contained to the contrary notwithstanding; or, if an Event of Default described
in clause (d) or (e) shall have occurred and be continuing, and in each and every such case, unless the principal of all the Securities
of such series shall have already become due and payable, the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) shall be automatically deemed
immediately due and payable.
SECTION 6.02. Rescission and Annulment
The provisions in Section 6.01 are subject to
the condition that if, at any time after the principal of the Securities of any one or more of all series, as the case may be,
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series or of all the Securities, as the case may be, and the principal
of (and premium, if any, on) all Securities of such series or of all the Securities, as the case may be (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities), which shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any) and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified
in the Securities of such series or all Securities, as the case may be (or, with respect to Original Issue Discount Securities,
at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration
of such series, as the case may be), to the date of such payment or deposit, and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its gross negligence or willful misconduct, and any and all defaults under the Indenture,
other than the non-payment of the principal of Securities that has become due by acceleration, shall have been remedied; then and
in every such case the holders of a majority in aggregate principal amount of the Securities of such series (or of all the Securities,
as the case may be) then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect
to that series or with respect to all Securities, as the case may be in such case, treated as a single class and rescind and annul
such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment
or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee
and the securityholders, as the case may be, shall be restored respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Company, the Trustee and the securityholders, as the case may be, shall continue as though
no such proceedings had been taken.
SECTION 6.03. Collection of Indebtedness
and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default
is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such default
continues for a period of 90 days,
(b) default
is made in the payment of the principal or premium, if any, of any Security at the maturity thereof, including any maturity occurring
by reason of a call for redemption or otherwise, or
(c) default
is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the holders of such Securities and any coupons appertaining thereto, the whole amount that shall
have become due and payable on such Securities and coupons for principal or premium, if any, and interest, with interest upon the
overdue principal and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest,
at the rate borne by such Securities; and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.04. Trustee May File Proofs of
Claim.
In the case of the pendency of a receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of principal and premium, if any, and any interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the holders of Securities and coupons allowed in such judicial proceeding; and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator
or sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each holder of Securities and
coupons to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the holders of Securities and coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. To
the extent that such payment of reasonable compensation, expenses, disbursements, advances and other amounts out of the estate
in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, moneys, securities and other property which the holders of the Securities and coupons
may be entitled to receive in such proceedings, whether in liquidation or under any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of the holder of a Security or a coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any holder thereof, or to authorize
the Trustee to vote in respect of the claim of any holder of a Security or a coupon in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims
Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Securities
and coupons in respect of which such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or any interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.06;
SECOND: To the payment of all Senior Indebtedness
of the Company if and to the extent required by Article 16;
THIRD: To the payment of the amounts then due
and unpaid upon the Securities for principal of and premium, if any, and any interest on the Securities and coupons, in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and coupons, for principal and any interest, respectively; and
FOURTH: To the Company or its successors or assigns,
or to whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits.
No holder of any Security of any series or any
related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such
holder has previously given written notice to the Trustee of a continuing Event of Default;
(2) the
holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such
holder or holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceedings;
and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or
more such holders of Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such holders of Securities or to obtain or to seek to obtain
priority or preference over any other of such holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such holders of Securities.
SECTION 6.08. Unconditional Right of Securityholders
to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture,
the holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security or payment of such coupon
on the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on the redemption date)
and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such
holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any holder of a Security or
coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such holder, then and in every such case the
Company, the Trustee and the holders of Securities and coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the holders
shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right or
remedy herein conferred upon or reserved to the Trustee or to the holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
holder of any Security or coupon to exercise any right or remedy accruing upon any Default shall impair any such right or remedy
or constitute a waiver of any such Default or any acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the holders of Securities or coupons, as the case may be.
SECTION 6.12. Control by Securityholders.
The holders of a majority in principal amount
of Outstanding Securities of each series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that
(1) such
direction shall not be in conflict with any statute, rule of law or with this Indenture;
(2) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) the
Trustee need not take any action which it in good faith determines might involve it in personal liability or be unjustly prejudicial
to the securityholders not consenting.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a temporary global Security or a permanent global
Security, the Trustee may establish a record date for determining holders of Outstanding Securities of such series entitled to
join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction. The
holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such direction,
whether or not such holders remain holders after such record date, provided that, unless such majority in principal amount shall
have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further
action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder,
from giving, after expiration of such 90-day period, a new direction identical to a direction which has been cancelled pursuant
to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this
Section 6.12.
SECTION 6.13. Waiver of Past Defaults.
The holders of a majority in principal amount
of the Securities of each series at the time Outstanding may, on behalf of the holders of all the Securities of that series and
any coupons appertaining thereto, waive any past default hereunder and its consequences, except a default:
(1) in
the payment of the principal of, premium, if any, or any interest on any Security;
(2) described
in clauses (d) or (e) of Section 6.01; or
(3) in
respect of a covenant or provision hereof that pursuant to Article 10 cannot be modified or amended without the consent of the
holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease
to exist, and any Default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture,
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each
holder of any Security or coupon by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any holder, or group of holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any holder of any Securities or coupons for the enforcement of the payment of the principal
of, premium, if any, or any interest on any Security or the payment of any coupon on or after the respective stated maturities
expressed in such Security or coupon (or, in the case of redemption, on or after the redemption date, except, in the case of a
partial redemption, with respect to the portion not so redeemed).
SECTION 6.15. Waiver of Stay or Extension
Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension laws wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits or advantage
of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been enacted.
Article
7
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities
of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default of a particular series and after the curing of all Events of Default of
such series which may have occurred, undertakes to perform such duties and only such duties with respect to such series as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the
Trustee. In the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In
case an Event of Default with respect to a particular series has occurred (which has not been cured), the Trustee shall exercise
with respect to such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No
provisions of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior
to the occurrence of an Event of Default with respect to a particular series and after the curing of all Events of Default with
respect to such series which may have occurred, the duties and obligations of the Trustee with respect to such series shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of Securities pursuant to Section 6.12 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) No
provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions,
etc.
Subject to the provisions of Section 7.01:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer’s Certificate;
(c) the
Trustee may consult with counsel and the advice of such counsel and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the holders of any Securities or any related coupons pursuant to the provisions of this Indenture, unless
such holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the losses, costs, expenses
and liabilities which might be incurred therein or thereby;
(e) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or documents,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(f) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(g) the
Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(h) the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities
of a particular Series and this Indenture;
(i) in
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action;
(j) the
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty
to do so; and
(k) the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise in respect
of the Indenture.
SECTION 7.03. No Responsibility for Recitals,
etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or coupons, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 7.04. Ownership of Securities.
The Trustee, any authenticating agent, any paying
agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons with the same rights it would have if it were not Trustee, authenticating
agent, paying agent, Security Registrar or such other agent of the Company or of the Trustee.
SECTION 7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04 hereof,
all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither
the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as
it may agree in writing with the Company to pay thereon.
SECTION 7.06. Compensation and Expenses of
Trustee.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder as
the Company and the Trustee shall from time to time agree in writing (which to the extent permitted by law shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided,
the Company will pay or reimburse the Trustee forthwith upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its gross negligence or willful misconduct. If any property other than cash shall at any time be subject
to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make and to be reimbursed
for, advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon.
The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any and all loss, damage, claims, liability
or expense, including taxes (other than taxes based upon, measured or determined by, the income of the Trustee) incurred without
gross negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any claim of liability and enforcing the provisions
of this Section 7.06. The obligations of the Company under this Section shall constitute additional indebtedness hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
To secure the Company’s obligations under
this Section, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property
held or collected by the Trustee, except that held in trust to pay principal of (and premium, if any) and interest, if any, on
particular Securities.
When the Trustee incurs expenses or renders services
after an Event of Default, the expenses and the compensation for the services are intended to constitute expenses of administration
under any bankruptcy law.
The Company’s obligations under this Section
7.06 shall survive satisfaction and discharge of the Indenture, payment of the Securities and any resignation or removal of the
Trustee hereunder.
SECTION 7.07. Officer’s Certificate
as Evidence
Subject to the provisions of Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
SECTION 7.08. Disqualifications; Conflicting
Interest of Trustee.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Eligibility of Trustee.
There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof
or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, (b) is subject to supervision
or examination by federal, state, territorial or District of Columbia authority, (c) shall have at all times a combined capital
and surplus of not less than $50,000,000 and (d) shall not be the Company or any person directly or indirectly controlling, controlled
by, or under common control with the Company. If such corporation publishes reports of condition at least annually, pursuant to
law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee.
(a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series by giving
written notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after
written request therefor by the Company or by any securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months,
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by any such securityholder, or
(3) the
Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company
may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such
series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.14, any securityholder
of such series who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may,
on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of all series (voting as one class) at the time Outstanding
may at any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the
Securities of all series.
(d) Any
resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section
shall become effective upon the appointment of a successor trustee and the acceptance of appointment by the successor trustee as
provided in Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the predecessor
trustee shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the predecessor trustee. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm
to such successor trustee all such rights and powers. Any trustee, including the initial Trustee, ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 7.06.
In case of the appointment hereunder of a successor
trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor
trustee with respect to the Securities of any applicable series shall execute and deliver a supplemental indenture which shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of
the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each
such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such trustee.
No successor trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified and eligible under
the provisions of this Article 7.
Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall mail notice of the succession of such trustee hereunder to all holders of
Securities of any applicable series as the names and addresses of such holders shall appear on the registry books. If the Company
fails to mail such notice in the prescribed manner within ten days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be so mailed at the expense of the Company.
SECTION 7.12. Successor by Merger, etc.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified and eligible under
the provisions of this Article 7, without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 7.13. Limitations on Rights of Trustee
as Creditor.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 7.14. Notice of Default.
Within 90 days after the occurrence of any default
on a series of Securities hereunder, the Trustee shall transmit to all securityholders of that series, in the manner and to the
extent provided in Section 15.04, notice of such default hereunder known to the Trustee, unless such default shall have been cured
or waived; provided, that except in the case of a default in the payment of the principal of or interest on any Security or on
the payment of any sinking or purchase fund installment, the Trustee shall be protected in withholding such notice if and so long
as the Trustee in good faith determines that the withholding of such notice is in the interests of the security-holders; and provided,
further, that in the case of any default of the character specified in clause (c) of Section 6.01 no such notice to securityholders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities
of such series.
SECTION 7.15. Appointment of Authenticating
Agent.
The Trustee may appoint an authenticating agent
or agents (which may be an affiliate or affiliates of the Company) with respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 2.09, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by
an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating agent. Each
authenticating agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any State or Territory thereof or of the District of Columbia, which (a) is authorized
under such laws to exercise corporate trust powers or to otherwise act as authenticating agent, (b) is subject to supervision or
examination by federal, state, territorial or District of Columbia authority, and (c) shall have at all times a combined capital
and surplus of not less than $50,000,000. If such authenticating agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such authenticating agent shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an authenticating agent shall cease to be eligible in accordance with the provisions
of this Section, such authenticating agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an authenticating agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of such authenticating agent, shall continue to be an authenticating agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating
agent.
An authenticating agent may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor authenticating agent which shall be acceptable to the Company and
shall promptly give notice of such appointment to all holders of Securities in the manner and to the extent provided in Section
15.04. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each authenticating
agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory
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If all of the Securities of a series may not be
originally issued at one time, and the Trustee does not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing, shall appoint in accordance with this Section an authenticating agent (which,
if so requested by the Company, shall be such affiliate of the Company) having an office in a Place of Payment designated by the
Company with respect to such series of Securities, provided that the terms and conditions of such appointment are acceptable to
the Trustee.
Article
8
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any authorization, notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by securityholders in person or by
agent or proxy appointed in writing, or (b) if Securities of a series are issuable as Bearer Securities, by the record of the holders
of Securities voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of securityholders
of such series duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of securityholders.
In determining whether the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series have taken any action (including the making of
any demand or request, the giving of any authorization, direction, notice, consent or waiver or the taking of any other action),
(i) the principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall
be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be
due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking
of such of such action is evidenced to the Trustee, and (ii) the principal amount of a Security denominated in a foreign currency
or currency unit shall be the U.S. dollar equivalent, determined as of the date of original issuance of such Security in accordance
with Section 2.03(b) hereof, of the principal amount of such Security.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, Section
7.02 and Section 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy, or of the holding by
any person of a Security, shall be sufficient and conclusive in favor of the Trustee and the Company if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The principal amount and serial numbers of Registered
Securities held by any person, and the date of holding the same, shall be proved by the Security Register. The principal amount
and serial numbers of Bearer Securities held by any person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such
person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved
by the certificate or affidavit of the person holding such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may also be provided in any other manner which the Trustee deems sufficient.
The record of any securityholders’ meeting
shall be proved in the manner provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose
name such Registered Security shall be registered upon the Security Register to be, and may treat him as, the absolute owner of
such Registered Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon), for the purpose of receiving payment of or on account of the principal of (and premium, if any) and, subject
to the provisions of Section 2.05 and Section 2.07, any interest on such Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or of the Trustee shall be affected by any notice to the contrary. All such payments
so made to any holder for the time being, or upon his or her order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or of the Trustee may treat the bearer of
any Bearer Security and the bearer of any coupon as the owner of such Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to
any temporary or permanent global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company
or of the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depositary,
as the case may be, or impair, as between a U.S. Depositary and holders of beneficial interests in any temporary or permanent global
Security, as the case may be, the operation of customary practices governing the exercise of the rights of the U.S. Depositary
as holder of such temporary or permanent global Security.
SECTION 8.04. Company-Owned Securities Disregarded.
In determining whether the holders of the
required aggregate principal amount of Securities have provided any request, demand, authorization, notice, direction,
consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or
by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any other obligor on the Securities, shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote
such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.05. Revocation of Consents; Future
Securityholders Bound.
At any time prior to the taking of any action
by the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with
such action, any holder of a Security, the identifying number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action, may, by filing written notice with the Trustee at its office and upon proof
of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of
such Security and of any Security issued upon registration of transfer of or in exchange or substitution therefor in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, irrespective of whether or not
any notation in regard thereto is made upon such Security. Any action taken by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Securities.
SECTION 8.06. Record Date.
The Company may, but shall not be obligated to,
set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to
any action by vote or consent or to otherwise take any action under this Indenture authorized or permitted by Section 6.12 and
Section 6.13 or otherwise under this Indenture. Such record date shall be the later of (i) the date 20 days prior to the first
solicitation of such consent or vote or other action and (ii) the date of the most recent list of holders of such Securities delivered
to the Corporate Trust Office of the Trustee pursuant to Section 5.01 prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of business on such record date shall be entitled to vote or consent
or take such other action, or to revoke any such action, whether or not such persons continue to be holders after such record date,
and for that purpose the Outstanding Securities shall be computed as of such record date.
Article
9
SECURITYHOLDERS’ MEETINGS
SECTION 9.01. Purposes of Meeting.
A meeting of holders of any or all series of Securities
may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(a) to
give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and
its consequences, or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article
6;
(b) to
remove the Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(c) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to
take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the
Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of
security-holders of any or all series to take any action specified in Section 9.01, to be held at such time and at such place in
New York, New York or Pine Bluff, Arkansas as the Trustee shall determine. Notice of every meeting of the securityholders of any
or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given in the manner provided in Section 15.04 not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 9.03. Call of Meetings by Company
or Securityholders.
In case at any time the Company, pursuant to a
Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as the case
may be, then Outstanding, shall have requested the Trustee to call a meeting of securityholders of any or all series to take any
action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have provided notice of such meeting in the manner provided in Section 15.04 within 30 days
after receipt of such request, then the Company or the holders of such Securities in the amount above specified may determine the
time and the place in New York, New York or Pine Bluff, Arkansas for such meeting and may call such meeting by giving notice thereof
as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of securityholders
a person shall be a holder of one or more Securities of such series Outstanding with respect to which a meeting is being held or
a person appointed by an instrument in writing as proxy by such a holder or holders. The only persons who shall be entitled to
be present or to speak at any meeting of the securityholders of any series shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations.
Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders of a series, in regard
to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it deems fit. Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Article 8 and the appointment of any proxy shall be proved in the manner
specified in Article 8 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Article 8 to certify to the holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Article
8 or other proof.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by securityholders as
provided in Section 9.03, in which case the Company or the securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.01 and
Section 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each $1,000 (or the U.S. Dollar equivalent
thereof in connection with Securities issued in a foreign currency or currency unit) Outstanding principal amount of Securities
of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of
any
Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote except as a securityholder
or proxy. Any meeting of securityholders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned
from time to time, and the meeting may be reconvened without further notice.
SECTION 9.06. Voting.
The vote upon any resolution submitted to any
meeting of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders or proxies
and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of
the Securities held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of securityholders
shall be prepared by the secretary of the meeting and there shall be attached to the record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that the notice was mailed as provided in Section 9.02. The record shall be signed
and verified by the chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other
to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Article
10
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Securityholders.
Without the consent of any holders of Securities
or coupons, the Company, when authorized by or pursuant to Board Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
in force at the date of the execution thereof) for one or more of the following purposes:
(a) to
evidence the succession of another corporation to the Company, or successive successions, pursuant to Article 11 hereof, and the
assumption by the successor corporation of the covenants, agreements and obligations of the Company herein and in the Securities;
(b) to
add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the holders of 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 several remedies provided in this Indenture as herein set forth, with such period of grace, if any, and subject
to such conditions as such supplemental indenture may provide;
(c) to
add to or change any of the provisions of this Indenture to provide that Bearer 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 Securities in uncertificated form,
provided that any such action shall not adversely affect the interests of the holders of Securities of any series or any related
coupons in any material respect;
(d) to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the Trust Indenture Act, excluding however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter enacted;
(e) to
modify, eliminate or add to any of the provisions of this Indenture, provided that any such change or elimination (i) shall become
effective only when there is no Security of any series Outstanding and created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding;
(f) to
cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provisions contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under
this Indenture, provided such other provisions shall not adversely affect in any material respect the interests of the holders
of the Securities or any related coupons, including provisions necessary or desirable to provide for or facilitate the administration
of the trusts hereunder;
(g) to
secure any series of Security; and
(h) to
evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one
or more series and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to Section 7.11.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise. No supplemental indenture shall be effective as against the Trustee
unless and until the Trustee has duly executed and delivered the same.
SECTION 10.02. Supplemental Indentures with
Consent of Holders.
With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class), the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as in force at the date of the execution thereof) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of such series and any related coupons under this Indenture; provided, that no such
supplemental indenture shall (1) extend the fixed maturity of any Securities, 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 Security
so affected, (2) reduce the aforesaid percentage of Securities, the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of all Securities then Outstanding, (3) modify the subordination provisions in a
manner adverse to the holders of such Securities, or (4) modify any of the above provisions.
Upon the request of the Company, accompanied by
a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of securityholders as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Article 10, the Company shall provide notice, in the
manner and to the extent provided in Section 15.04, setting forth in general terms the substance of such supplemental indenture,
to all holders of Securities of each series so affected. Any failure of the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to
the provisions of this Article 10 shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10 and subject to the provisions in any supplemental indenture relating to
the prospective application of such instrument, this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining
thereto shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section
7.01 and Section 7.02, shall be entitled to receive and shall be fully protected in relying upon an Officer’s Certificate
and an Opinion of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of this Article
10.
SECTION 10.04. Notation on Securities.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders, in
exchange for the Securities of such series then Outstanding.
Article
11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc.,
on Certain Terms.
The Company covenants that it will not merge into
or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm or corporation,
unless (1) either the Company shall be the continuing corporation, or the successor corporation (if other than the Company) shall
be a corporation organized and existing under the laws of the United States of America or a state thereof or the District of Columbia
and such corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any, on) and any
interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company by supplemental indenture, executed and delivered to the Trustee
by such corporation, and (2) the Company or such successor corporation, as the case may be, shall not, immediately after such merger
or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale
or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted
for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as the party of
the first part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name
of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall make available for delivery any
Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication,
and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose.
All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued
at the date of the execution thereof.
In case of any such consolidation, merger, sale
or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 11.03. Opinion of Counsel and Officer’s
Certificate to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officer’s Certificate as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article 11 and that all conditions precedent herein provided for relating to such transaction
have been complied with.
Article
12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture.
If at any time
(a) the
Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all coupons,
if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 2.07, (ii)
Securities and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09,
(iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 3.03, and (iv) Securities and coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 4.03), or
(b) all
such Securities of such series and, in the case of (a)(i) or (a)(ii) above, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation (i) shall have become due and payable, or (ii) are by their terms to become due and payable within
one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company in the case of (a)(i) or (a)(iii) above shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount (other than moneys repaid by the Trustee or any paying agent to the Company in accordance
with Section 12.04) sufficient to pay at maturity or upon redemption all Securities of such series and coupons not therefore 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 fixed for redemption, as the case may be, and if in either case the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company with respect to such series, then this Indenture shall cease to be of further effect
with respect to the Securities of such series, and the Trustee, on demand of and at the cost and expense of the Company and subject
to Section 15.05, shall execute such instruments reasonably requested by the Company acknowledging satisfaction of and discharging
this Indenture with respect to the Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably incurred by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Securities of any series or of all series, the obligations
of the Company to the Trustee under Section 7.06 shall survive.
The Company will deliver to the Trustee an Officer’s
Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 12.02. Deposited Moneys to be Held
in Trust by Trustee.
Subject to the provisions of the last paragraph
of Section 4.03, all moneys deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the persons entitled
thereto, of all sums due and to become due thereon for principal and interest (and premium, if any) for which payment of such money
has been deposited with the Trustee.
SECTION 12.03. Paying Agent to Repay Moneys
Held.
In connection with the satisfaction and discharge
of this Indenture with respect to Securities of any series and the payment of all amounts due to the Trustee under Section 7.06,
all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of (and premium, if any) or interest on any Security and not applied but remaining
unclaimed for two years after the date upon which such principal (and premium, if any, on) or interest shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on demand, and the holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for any payment which such holder may be entitled to collect and all
liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
Article
13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely
Corporate Obligations.
No recourse under or upon any obligation, covenant
or agreement contained in this Indenture, or in any Security or coupon, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the Company
or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities or coupons by the holders thereof and as part
of the consideration for the issue of the Securities.
Article
14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article.
Unless, as specified pursuant to Section 2.03(b),
provision is made that either or both of (a) defeasance of the Securities of a series under Section 14.02 and (b) covenant defeasance
of the Securities of a series under Section 14.03 shall not apply to the Securities of a series, then the provisions of such Section
14.02 and Section 14.03, together with Section 14.04 and Section 14.05, shall be applicable to the Outstanding Securities of all
series upon compliance with the conditions set forth below in this Article 14.
SECTION 14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may cause
itself to be discharged from its obligations with respect to the Outstanding Securities of any series on and after the date the
conditions precedent set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter,
“defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments of the
principal of and any premium and interest on such Securities when such payments are due, (b) the Company’s obligations with
respect to such Securities under Section 2.07, Section 2.08, Section 2.09, Section 4.02 and Section 4.03 and such obligations as
shall be ancillary thereto, (c) the rights, powers, trusts, duties, immunities and other provisions in respect of the Trustee hereunder,
and (D) this Article 14. Subject to compliance with this Article 14, defeasance with respect to Securities of a series by the Company
is permitted under this Section 14.02 notwithstanding the prior exercise of its rights under Section 14.03 with respect to the
Securities of such series. Following a defeasance, payment of the Securities of such series may not be accelerated because of an
Event of Default.
SECTION 14.03. Covenant Defeasance.
The Company may cause itself to be released from
its obligations under any Sections applicable to Securities of a series that are determined pursuant to Section 2.03(b) to be subject
to this provision with respect to the Outstanding Securities of such series on and after the date the conditions precedent set
forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter, “covenant
defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 14.04. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent
or, as specifically noted below, subsequent to application of either Section 14.02 or Section 14.03 to the Outstanding Securities
of such series:
(a) The
Company shall 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 benefit of the holders of such
Securities, (i) money in an amount, or (ii) U.S. Government Obligations which 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, money
in an amount, or (c) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (1) the principal of and any premium and interest on the Outstanding
Securities of such series to maturity or redemption, as the case may be, and (2) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may
make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article
3 which shall be given effect in applying the foregoing. For this purpose, “U.S. Government Obligations” means securities
that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or
(y) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government obligation
or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt;
(b) No
Default, or event that after notice or lapse of time, or both, would become a Default with respect to the Securities of such series,
shall have happened and be continuing (i) on the date of such deposit or (ii) insofar as Section 6.01(a) and Section 6.01(b) are
concerned, at any time 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 in respect of such deposit (it being understood
that the condition in this clause (b) is a condition subsequent and shall not be deemed satisfied until the expiration of such
period);
(c) Such
defeasance or covenant defeasance shall not (i) cause the Trustee for the Securities of such series to have a conflicting interest
as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company or (ii) result
in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended;
(d) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which it is bound;
(e) Such
defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities
exchange under the Exchange Act to be delisted;
(f) In
the case of a defeasance under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date
of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the Outstanding Securities of such series 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,
in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g) In
the case of covenant defeasance under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(h) Such
defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 2.03(b); and
(i) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent and subsequent provided for in this Indenture relating to either the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03, as the case may be, have been complied with.
SECTION 14.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of the Outstanding Securities of such series
shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any paying agent (but not including the Company acting as its own paying agent) as the
Trustee may determine, to the holders of such Securities of all sums due and to become due thereon in respect of principal and
any premium and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the money or U.S. Government Obligations deposited pursuant
to Section 14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant defeasance, provided that the Trustee shall not be required
to liquidate any U.S. Government Obligations in order to comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding,
if and to the extent the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied
by the Trustee in accordance with this Section because of a court order or by operation of Article 16 or (ii) are for any reason
insufficient in amount, then the Company’s obligations to pay principal of and any premium and interest on the Securities
of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any such case,
the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated
to the extent the Company’s payment obligations are reinstated.
Article
15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted
to Parties and Securityholders.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and
their successors and assigns and the holders of the Securities (and, with respect to the provisions of Article 16, the holders
of Senior Indebtedness), any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and assigns
and the holders of the Securities (and, with respect to the provisions of Article 16, the holders of Senior Indebtedness).
SECTION 15.02. Provisions Binding on Company’s
Successors.
All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 15.03. Addresses for Notices, etc.,
to Company and Trustee.
Any notice or demand which by any provisions of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Company
may be given or served by postage prepaid first class mail addressed (until another address is filed by the Company with the Trustee),
as follows: Simmons First National Corporation, 501 Main Street, Pine Bluff, Arkansas 71601, Attn: General Counsel. Any notice,
direction, request or demand by any securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee as set forth in Section 4.02.
SECTION 15.04. Notice to Holders of Securities;
Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice of holders of Securities of any event,
(a) such
notice shall be sufficiently given to holders of Registered Securities if in writing and mailed, first-class postage prepaid, to
each holder of a Registered Security affected by such event, at the address of such holder as it appears in the Security Register,
not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(b) such
notice shall be sufficiently given to holders of Bearer Securities if published in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving
of such notice.
In any case where notice to holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
holder of a Registered Security shall affect the sufficiency of such notice with respect to other holders of Registered Securities
or the sufficiency of any notice to holders of Bearer Securities given as provided herein.
Neither the failure to give notice by publication
to holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any
notice to holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Notwithstanding anything in this Indenture to
the contrary, where any notice is to be given to the Holders of Global Securities, notice shall be sufficient if given in accordance
with the procedures of the U.S. Depositary.
SECTION 15.05. Evidence of Compliance with
Conditions Precedent.
Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each Officer’s Certificate and Opinion of
Counsel provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been
complied with.
SECTION 15.06. Legal Holidays.
In any case where the date of maturity of interest
on or principal of the Securities or the date fixed for redemption of any Securities shall be a Saturday or Sunday or a legal holiday
in New York, New York or Pine Bluff, Arkansas or in such other place or places as the Company may designate pursuant to Section
4.02, or a day on which banking institutions in New York, New York or Pine Bluff, Arkansas or in such other place or places are
authorized by law or required by executive order to close, then payment of interest or principal (and premium, if any) need not
be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 15.07. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in
this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 15.08. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission will constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures
of the parties hereto transmitted by facsimile or PDF will be deemed to be their original signatures for all purposes.
SECTION 15.09. Governing Law; Waiver of Jury
Trial.
This Indenture and each Security shall be deemed
to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance
with the laws of the State of New York.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 15.10. Severability.
In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture,
hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
SECTION 15.11. Interpretations.
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
This Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 15.12. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance
with Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the “USA PATRIOT Act”), the Trustee, like all financial institutions and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
SECTION 15.13. Force Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 15.14. Jurisdiction.
The Company and the Trustee agree that any suit,
action or proceeding arising out of or based upon this Indenture or the Securities may be instituted in any state or Federal court
in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and irrevocably submit to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company and the Trustee irrevocably waive, to the fullest extent
permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture or the
Securities, including such actions, suits or proceedings relating to securities laws of the United States or any state thereof,
in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding
has been brought in an inconvenient forum. The Company and the Trustee agree that final judgment in any such suit, action or proceeding
brought in such court shall be conclusive and binding upon the Company or the Trustee, as applicable, and may be enforced in any
court to the jurisdiction of which the Company or the Trustee, as applicable, is subject by a suit upon such judgment.
Article
16
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to
Senior Indebtedness.
Except as otherwise provided in a supplemental
indenture or pursuant to Section 2.01, the Company agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article, to the
prior payment in full of all Senior Indebtedness and that the subordination is for the benefit of the holders of Senior Indebtedness.
Notwithstanding the foregoing, if a deposit is made pursuant to Section 14.02 or Section 14.03 with respect to any Securities (and
provided all other conditions set out in Section 14.02 or 14.03, as applicable, shall have been satisfied with respect to such
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, including any such rights arising under this Article 16. Notwithstanding
anything in this Indenture to the contrary, the provisions of this Article 16 shall not apply to any amounts due to the Trustee
under Section 7.06.
IN WITNESS WHEREOF, SIMMONS FIRST NATIONAL CORPORATION
has caused this Indenture to be signed and acknowledged by its Chief Executive Officer or its President or one of its Vice Presidents,
and WILMINGTON TRUST, NATIONAL ASSOCIATION has caused this Indenture to be signed and acknowledged by one of its Responsible Officers,
all as of the day and year first above written.
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SIMMONS FIRST NATIONAL CORPORATION
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By:
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Name:
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Title:
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WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE
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By:
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Name:
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Title:
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EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE (1) BEARER SECURITY, SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL SECURITY OR (3) INTEREST
ON A TEMPORARY GLOBAL SECURITY] CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that the above-captioned Securities
are being acquired by or on behalf of, (or for offer to resell or for resale to), and if this certificate is being delivered in
connection with a payment of interest, were beneficially owned by or on behalf of, (a) a person (other than a financial institution
for purposes of resale during the restricted period) who is not a United States person; or (b) a United States person (other than
a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution
and who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in
the case of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986, as from time to time amended, and
the regulations thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial
institution has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person
within the United States or its possessions. If the undersigned is a clearing organization, the undersigned has obtained a similar
certificate from its member organizations on which this certificate is based; provided, that if the undersigned has actual knowledge
that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such
Security is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United
States address for such beneficial owner, other than a financial institution described above), the undersigned will not deliver
a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless
of its source, “United States” means the United States of America (including the States and the District of Columbia),
“possessions” of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and Northern Mariana Islands, “restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the
Treasury Regulations and “financial institution” means the persons described in Section 1.165-12(c)(1)(v) of the Treasury
Regulations.
We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities or on the interest
payment date with respect to the above-captioned Securities, as the case may be, as to all of such Securities.
We understand that this certificate may be required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or
a copy thereof to any interested party in such proceedings.
Dated: __________________, 20___
[To be dated on or after
__________________, 20___ (the
date determined as provided in the
Indenture)]
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[Name of Person Entitled to Receive Bearer Security or
Interest]
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(Authorized Signatory)
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Name:
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e
xhibit
5.1
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PATRICK A. BURROW
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Executive Vice President,
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General Counsel and Secretary
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March 19, 2018
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Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Ladies and Gentlemen:
I am the Executive
Vice President, General Counsel and Secretary of Simmons First National Corporation, an Arkansas corporation (the “Company”),
and have acted as counsel to 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 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) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “
Warrants
”);
(iv) rights to subscribe for and to purchase Common Stock, Preferred Stock or Debt Securities (the “
Subscription Rights
”);
(v) one or more series of debt securities of the Company (the “
Debt Securities
”); (vi) depositary shares, representing
a fractional interest in a share of Preferred Stock and evidenced by a depositary receipt (the “
Depositary Shares
”);
(vii) 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
”); (viii)
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
”); and (ix) units comprised of any combination of Common Stock, Preferred Stock, Warrants, Subscription Rights,
Debt Securities, Depositary Shares, Purchase Contracts or Purchase Units (the “
Units
” and, collectively with
the Warrants, Subscription Rights, Debt Securities, Depositary Shares, Purchase Contracts and Purchase Units, 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.
In connection with
this opinion I, or attorneys under my supervision, have examined the Company’s 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. I, or attorneys under my supervision, have also examined originals or copies, certified or otherwise identified to my
or their satisfaction, of such documents, corporate records, instruments and other relevant materials as I deemed advisable and
have made such examination of statutes and decisions and reviewed such questions of law as I have considered necessary or appropriate.
As to facts material to this opinion letter, I have relied as to certain matters on information obtained from public officials,
officers of the Company and other sources I believed to be responsible, without any independent verification thereof.
Simmons First National Corporation
March 19, 2018
Page 2
In my examination,
I have 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 I have reviewed; and (g) the absence of any undisclosed modifications to the agreements and instruments that I, or
attorneys under my supervision, have reviewed.
Based on the foregoing,
and subject to assumptions, qualifications and limitations set forth herein, I am 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 rule and regulations thereunder; (ii) the Company
has taken all corporate action necessary to authorize 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.
Simmons First National Corporation
March 19, 2018
Page 3
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 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 19, 2018
Page 4
For the purposes of
this opinion letter, I have 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 will remain 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 Offered 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, I express no opinion with respect to the laws of any jurisdiction other than the laws of the State of Arkansas.
I am furnishing this
opinion letter to you in connection with the filing of the Registration Statement. This opinion 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 I undertake no obligation to update or supplement this letter if any applicable law changes after
the date hereof or if I 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.
I hereby consent to
the filing of this opinion letter as an exhibit to the Registration Statement and the reference to my name under the heading “Legal
Matters” in the prospectus constituting part of the Registration Statement. In giving such consent, I do not thereby admit
that I am within 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/ Patrick A. Burrow
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Patrick A. Burrow
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Executive Vice President,
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General Counsel and Secretary
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Exhibit 5.2
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COVINGTON
BEIJING
BRUSSELS DUBAI JOHANNESBURG LONDON
LOS ANGELES NEW YORK SAN FRANCISCO SEOUL
SHANGHAI SILICON VALLEY WASHINGTON
|
Covington
& Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
T +1202 662 6000
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March
19, 2018
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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 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) warrants to purchase Common Stock, Preferred
Stock or Debt Securities (as defined below) (the “
Warrants
”); (iv) rights to subscribe for and to purchase Common
Stock, Preferred Stock or Debt Securities (the “
Subscription Rights
”); (v) one or more series of debt securities
of the Company (the “
Debt Securities
”); (vi) depositary shares, representing a fractional interest in a share
of Preferred Stock and evidenced by a depositary receipt (the “
Depositary Shares
”); (vii) 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
”); (viii) 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
”), and
(ix)
units comprised of any combination of Common Stock, Preferred Stock, Warrants, Subscription Rights, Debt Securities, Depositary
Shares, Purchase Contracts or Purchase Units (the “
Units
” and, collectively with the Warrants, Subscription
Rights, Debt Securities, Depositary Shares, Purchase Contracts and Purchase Units, the “
Covered Securities
”)
,
pursuant to the Company’s Registration Statement on Form S-3 (the “
Registration Statement
”) filed with
the United States Securities and Exchange Commission (the “
Commission
”) on the date hereof.
We have reviewed 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.
COVINGTON
Simmons First National Corporation
March 19, 2018
Page 2
We
have assumed that, at the time of the issuance, sale and delivery of each series of Debt Securities and each issue of Warrants,
Subscription Rights, Depositary Shares, Purchase Contracts, Purchase Units or Units, as the case may be:
(i) the execution,
delivery and performance by the Company of the senior indenture in the form of Exhibit 4.3 to the Registration Statement or the
subordinated indenture in the form of Exhibit 4.4 to the Registration Statement, as applicable, and any supplemental indenture
thereto (any such indenture, together with any applicable supplemental indenture, the “
Indenture
”), deposit
agreement, warrant agreement, subscription agreement or subscription rights certificate, purchase contract agreement and unit agreement
(collectively, the “
Documents
”), as applicable, 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; (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, and (iii)
the prospectus included
in the Registration Statement will describe the Covered Securities offered thereby or an appropriate prospectus supplement will
have been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder
and will describe the Covered Securities offered thereby
. 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 further that the
Documents will be governed by and construed in accordance with the laws 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 laws 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 Indenture and the Documents. With respect to all matters of Arkansas law, we note that you are relying on an opinion of Patrick
A. Burrow,
the Executive Vice President, General Counsel and Secretary of the Company
,
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.
Based upon the foregoing,
and subject to the qualifications set forth herein, we are of the opinion that, when, as and if:
COVINGTON
Simmons First National Corporation
March 19, 2018
Page 3
1. 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; (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 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 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 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; (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
Subscription Rights, as applicable, have been duly and validly authorized and 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.
COVINGTON
Simmons First National Corporation
March 19, 2018
Page 4
3. 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 Indenture has been duly executed and delivered on behalf of the Company and a trustee qualified to act as
such under applicable law and such Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended; (iii) 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; (iv) any legally required consents, approvals,
authorizations and other orders of the Commission and any other regulatory authorities have been obtained; and (v) such Debt Securities
have been duly executed by the Company and authenticated by the Trustee in accordance with the Indenture, or any applicable supplemental
indenture, 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.
4. 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;
(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 (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 legally 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.
5. 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 laws; (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; (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 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.
COVINGTON
Simmons First National Corporation
March 19, 2018
Page 5
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;
(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, Subscription
Rights, Purchase Contracts or Purchase Units to be issued pursuant to such Units, have been duly and validly authorized and 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, 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 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.
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.
COVINGTON
Simmons First National Corporation
March 19, 2018
Page 6
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 5.2 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 15.1
Independent Auditors Awareness Letter
The Board of Directors
Simmons First National Corporation
Pine Bluff, Arkansas
Ladies and Gentlemen:
We have reviewed, in accordance with auditing standards generally accepted in the United States of America applicable to reviews
of interim financial information, the unaudited interim financial information of First Texas BHC, Inc. and Subsidiaries for
the nine-month periods ended September 30, 2017 and September 30, 2016, as indicated in our report dated December 20, 2017;
because we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, is included in the Registration Statement on Form S-3 of Simmons First National
Corporation filed March 19, 2018.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered
a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of that Act.
/s/ Payne & Smith, LLC
Dallas, Texas
March 19, 2018
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 28, 2018, on our audits
of the consolidated financial statements of the Company as of December 31, 2017 and 2016, and for each of the years in the three-year
period ended December 31, 2017, which report is included in the Company’s Annual Report on Form 10-K for the year ended December
31, 2017. We also consent to the incorporation by reference of our report dated February 28, 2018, on our audit of the internal
control over financial reporting of the Company as of December 31, 2017, which report is included in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2017. We also consent to the reference to our firm under the caption “Experts”
in the prospectus included in the Registration Statement.
Little Rock, Arkansas
March 19 2018
Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 9, 2017, on our audits of the consolidated financial statements of Southwest Bancorp
(the Company) as of December 31, 2016 and 2015, and for each of the years in the two-year period ended December 31, 2016, which
report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016. We also consent to the
incorporation by reference of our report dated March 9, 2017, on our audit of the internal control over financial reporting
of the Company as of December 31, 2016, which report is included in the Company’s Annual Report on Form 10-K for the year
ended December 31, 2016. We also consent to the reference to our firm under the caption “Experts” in the prospectus included in the Registration Statement.
Oklahoma City, Oklahoma
March 19, 2018
Exhibit 23.3
Consent of Independent Registered Public
Accounting Firm
We consent to the reference to our firm
under the caption “Experts” and to the use of our report dated March 10, 2015, with respect to the consolidated financial
statements of Southwest Bancorp, Inc. incorporated by reference in the Registration Statement on Form S-3 and related Prospectus
of Simmons First National Corporation filed on March 19, 2018 for the registration of shares of its common stock and preferred
stock, debt securities, depository shares, warrants, purchase contracts, purchase units, subscription right, and units.
/s/ Ernst & Young LLP
Dallas, Texas
March 19, 2018
Exhibit 23.4
Consent of Independent Auditors
The Board of Directors
Simmons First National Corporation
Pine Bluff, Arkansas
Ladies and Gentlemen:
We consent to the use, in the Registration Statement on Form S-3 of Simmons First National Corporation filed March 19, 2018,
of our report dated March 13, 2017 on our audits of the consolidated financial statements of First Texas BHC, Inc. and Subsidiaries
as of December 31, 2016 and 2015 and for each of the three years in the period ended December 31, 2016, which is contained
therein. We also consent to the references to our firm under the caption “Experts” in the prospectus
included in the Registration Statement.
/s/ Payne & Smith, LLC
Dallas, Texas
March 19, 2018
Exhibit 25.1
File No.____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
¨
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
(Address of principal executive offices)
Janet V Banks
Assistant Vice President
1100 North Market Street
Wilmington, Delaware 19890
(302) 636-4261
(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 of incorporation)
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(I.R.S. employer identification no.)
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501 Main Street
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Pine Bluff, Arkansas
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71601
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(Address of principal executive offices)
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(Zip Code)
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Senior Debt
(Title of the indenture securities)
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Item 1.
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GENERAL INFORMATION.
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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Yes.
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Item 2.
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AFFILIATIONS WITH THE OBLIGOR
.
If the obligor is an affiliate of the trustee, describe each affiliation:
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Based upon an examination of the books
and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the
trustee.
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Item 16.
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LIST OF EXHIBITS.
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, incorporated by reference to Exhibit 1 of Form T-1.
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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 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 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 form T-1.
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6.
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The consent of Trustee as required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to
Exhibit 6 of Form T-1.
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7.
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Current Report of the Condition of Trustee, published pursuant to law or the requirements of its supervising or examining authority,
attached as Exhibit 7.
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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 19th day of March, 2018.
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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)
|
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 18, 2017)
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)
|
The
name and address of each proposed nominee;
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(2)
|
The
principal occupation of each proposed nominee;
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(3)
|
The
total number of shares of capital stock of the association that will be voted for each
proposed nominee;
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|
|
(4)
|
The
name and residence of the notifying shareholder; and
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|
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(5)
|
The
number of shares of capital stock of the association owned by the notifying shareholder.
|
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote
tellers may disregard all votes cast for each such nominee.
Section 4. Proxies
. Shareholders
may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association
shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted
proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted
at any time during a meeting shall be accepted.
Section 5. Quorum
. A majority
of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum
may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the
votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law
or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the
election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1. Board of Directors
.
The board of directors shall have the power to manage and administer the business and affairs of the association. Except as expressly
limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number
. The
board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the bank
from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time
by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting
.
The secretary or treasurer, upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect
of their election and of the time at which they are required to meet at the main office of the association, or at such other place
in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers
of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present
may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings
.
The Board of Directors may, at any time and from time to time, by resolution designate the place, date and hour for the holding
of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without
notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at the main office or
other such place as the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday,
the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5. Special Meetings
.
Special meetings of the board of directors may be called by the Chairman of the Board of the association, or at the request of
two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person
stating the time and place of each special meeting.
Section 6. Quorum
. A majority
of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws,
but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice.
If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be
transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the
board of directors may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference
Telephone.
Any one or more members of the board of directors or any committee thereof may participate in a meeting of such
board or committees by means of a conference telephone or similar communications equipment allowing all persons participating in
the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at
such meeting.
Section 8. Procedures
.
The order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person
presiding at the meeting.
Section 9. Removal of Directors
.
Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred to the proposed action,
by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have
referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any
director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action,
by vote of a majority of the entire Board of Directors.
Section 10. Vacancies
.
When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according to the laws
of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special
meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum
of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at
a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder
entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies
being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that
will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power
over and is solely responsible for the management, supervision, and administration of the association. The board of directors may
delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally
ratify written policies authorized by committees of the board of directors before such policies become effective. Each committee
must have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the
association, who serve at the pleasure of the board of directors. Provisions of the articles of association and these bylaws governing
place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members
as well. The creation of a committee and appointment of members to it must be approved by the board of directors.
Section 1. Loan Committee
.
There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors annually or more often.
The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt,
to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts,
and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be
delegated. The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting
of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall
be entered in the minutes of the board of directors.
Section 2. Investment Committee
.
There shall be an investment committee composed of not less than 2 directors, appointed by the board of directors annually or more
often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend
amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to exercise, when the board
of directors is not in session, all other powers of the board of directors regarding investment securities that may be lawfully
delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular
meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3. Examining Committee
.
There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the
board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year
and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors
responsible only to the board of directors and to report the result of such examination in writing to the board of directors at
the next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate
internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner
of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of
the first paragraph of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be
given over to a duly constituted audit committee of the association's parent corporation by a resolution duly adopted by the board
of directors.
Section 4. Trust Audit Committee.
There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees
.
The board of directors may appoint, from time to time, from its own members, compensation, special litigation and other committees
of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
|
|
(1)
|
Authorize
distributions of assets or dividends;
|
|
|
(2)
|
Approve
action required to be approved by shareholders;
|
|
|
(3)
|
Fill
vacancies on the board of directors or any of its committees;
|
|
|
(4)
|
Amend
articles of association;
|
|
|
(5)
|
Adopt,
amend or repeal bylaws; or
|
|
|
(6)
|
Authorize
or approve issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares.
|
Section 6. Committee Members'
Fees
. Committee members may receive a fee for their services as committee members and traveling and other out-of-pocket expenses
incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending
each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not attended.
The amount of the fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1. Officers.
The
board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following the annual meeting
of the shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one or more Vice
Presidents, a Corporate Secretary, a Treasurer, a General Auditor, and such other officers as it may determine. At the Annual Reorganization
Meeting, the board of directors shall also elect or reelect all of the officers of the association to hold office until the next
Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the board of directors may also elect or
appoint a Chief Executive Officer, a President or such additional officers to the rank of Vice President, including (without limitation
as to title or number) one or more Administrative Vice Presidents, Group Vice Presidents, Senior Vice Presidents and Executive
Vice Presidents, and any other officer positions as they deem necessary and appropriate. The Chief Executive Officer of M&T
Bank, the head of the Human Resources Department of M&T Bank, and any one executive Vice Chairman of M&T Bank, acting jointly,
may appoint one or more officers to the rank of Executive Vice President or Senior Vice President. The head of the Human Resources
Department of M&T Bank or his or her designee or designees, may appoint other officers up to the rank of Group Vice President,
including (without limitation as to title or number) one or more Administrative Vice Presidents, Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors, and any other officer positions as they deem necessary
and appropriate. Each such person elected or appointed by the board of directors, the Chief Executive Officer of M&T Bank,
the head of the Human Resources Department of M&T Bank, and an executive Vice Chairman of M&T Bank, acting jointly, or
the head of the Human Resources Department of M&T Bank or his or her designee or designees, in between Annual Reorganization
Meetings shall hold office until the next Annual Reorganization Meeting unless otherwise determined by the board of directors or
such authorized officers.
Section 2. Chairperson of the
Board
. The board of directors shall appoint one of its members to be the chairperson of the board to serve at its pleasure.
Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying
out of the policies adopted or approved by the board of directors; shall have general executive powers, as well as the specific
powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may
be conferred upon or assigned by the board of directors.
Section 3. President
. The
board of directors shall appoint one of its members to be the president of the association. In the absence of the chairperson,
the president shall preside at any meeting of the board of directors. The president shall have general executive powers and shall
have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president,
or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time
may be conferred or assigned by the board of directors.
Section 4. Vice President
.
The board of directors may appoint one or more vice presidents. Each vice president shall have such powers and duties as may be
assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence of the president,
to perform all the duties of the president.
Section 5. Secretary
.
The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary of the board of
directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving
of all notices required by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association;
shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall
also perform such other duties as may be assigned from time to time, by the board of directors.
Section 6. Other Officers
.
The board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or more assistant secretaries,
one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys
in fact as from time to time may appear to the board of directors to be required or desirable to transact the business of the association.
Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by the board of directors, the chairperson of the board, or the president. The board of directors
may authorize an officer to appoint one or more officers or assistant officers.
Section 7. Tenure of Office
.
The president and all other officers shall hold office for the current year for which the board of directors was elected, unless
they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly
by the board of directors.
Section 8. Resignation
. An
officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee.
There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board of directors, which shall,
at least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable
audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers have been
administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such
committee: (1) must not include any officers of the bank or an affiliate who participate significantly in the administration of
the bank’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee
to which the board of directors has delegated power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of
the first paragraph of this section 1, the responsibility and authority of the Trust Audit Committee may, if authorized by law,
be given over to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted
by the board of directors.
Section 2. Fiduciary Files.
There
shall be maintained by the association all fiduciary records necessary to assure that its fiduciary responsibilities have been
properly undertaken and discharged.
Section 3. Trust Investments.
Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and
applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest in the
association investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under applicable law.
ARTICLE VI
Stock and Stock Certificates
Section 1. Transfers
. Shares
of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's shares, succeed
to all rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the stock reasonably
calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related
matters and to protect it against fraudulent transfers.
Section 2. Stock Certificates
.
Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed
manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed
by the board of directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved
thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the
association properly endorsed.
The board of directors may adopt or use
procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure
through which the beneficial owner of shares that are registered in the name of a nominee may be recognized by the association
as the shareholder. The procedure may set forth:
|
|
(1)
|
The
types of nominees to which it applies;
|
|
|
(2)
|
The
rights or privileges that the association recognizes in a beneficial owner;
|
|
|
(3)
|
How
the nominee may request the association to recognize the beneficial owner as the shareholder;
|
|
|
(4)
|
The
information that must be provided when the procedure is selected;
|
|
|
(5)
|
The
period over which the association will continue to recognize the beneficial owner as the shareholder;
|
|
|
(6)
|
Other
aspects of the rights and duties created.
|
ARTICLE VII
Corporate Seal
Section 1. Seal
. The seal
of the association shall be in such form as may be determined from time to time by the board of directors. The president, the treasurer,
the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors
shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate
obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year
. The fiscal year of the
association shall be the calendar year.
Section 2. Execution of Instruments
.
All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents
may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by the chairperson of the board,
or the president, or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary
powers of the association, by any of those offices or by any trust officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors
may from time to time direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records
. The articles
of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees
of the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting
shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section
4. Corporate Governance Procedures.
To the extent not inconsistent with federal banking statutes and regulations, or safe and
sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended
1994, and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5. Indemnification.
For
purposes of this Section 5 of Article VIII, the term “institution-affiliated party” shall mean any institution-affiliated
party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party
(or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses
actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil,
criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such
law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking
agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed
from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and
desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association
shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify
such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees,
penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding
(or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such
action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or
1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by
the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse
the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association
will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such
institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a
final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or
prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or
to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses
incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action
or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance
of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-
affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as
authorized by these bylaws and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties
to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by
law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated
party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority
of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification,
the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the
remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs
of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining
members of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification,
the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have
been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing
the requested indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment
of these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law
in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable
law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court
of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators)
for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and
to the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive
of any other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or
hereafter be otherwise entitled whether contained in the association’s articles of association, these bylaws, a resolution
of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other
rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to
the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise,
of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding
to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein
or in connection therewith or any part thereof.
If this Section 5 of Article VIII
or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified
to the minimum extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully
enforceable.
The association may, upon affirmative
vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent
that such indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final
order assessing civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for
the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection
. A
copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office
of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments
. The
bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of directors, by a vote of a
majority of the total number of the directors except as provided below, and provided that the following language accompany any
such change.
I,_________________, 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.
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION
|
|
|
|
|
|
Dated: March 19, 2018
|
By:
|
/s/
Michael H. Wass
|
|
|
|
Name: Michael H. Wass
|
|
|
|
Title: Vice President
|
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on December
31, 2017
|
ASSETS
|
|
Thousands of Dollars
|
|
|
Cash and balances due from depository institutions:
|
|
|
4,386,724
|
|
|
Securities:
|
|
|
5,615
|
|
|
Federal funds sold and securities purchased under agreement to resell:
|
|
|
302,500
|
|
|
Loans and leases held for sale:
|
|
|
0
|
|
|
Loans and leases net of unearned income, allowance:
|
|
|
217,761
|
|
|
Premises and fixed assets:
|
|
|
4,291
|
|
|
Other real estate owned:
|
|
|
354
|
|
|
Investments in unconsolidated subsidiaries and associated companies:
|
|
|
0
|
|
|
Direct and indirect investments in real estate ventures:
|
|
|
0
|
|
|
Intangible assets:
|
|
|
0
|
|
|
Other assets:
|
|
|
43,276
|
|
|
Total Assets:
|
|
|
4,960,521
|
|
|
LIABILITIES
|
|
Thousands of Dollars
|
|
|
Deposits
|
|
|
4,394,478
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
0
|
|
|
Other borrowed money:
|
|
|
0
|
|
|
Other Liabilities:
|
|
|
36,393
|
|
|
Total Liabilities
|
|
|
4,430,871
|
|
|
EQUITY CAPITAL
|
|
Thousands of Dollars
|
|
|
Common Stock
|
|
|
1,000
|
|
|
Surplus
|
|
|
395,536
|
|
|
Retained Earnings
|
|
|
133,452
|
|
|
Accumulated other comprehensive income
|
|
|
(338
|
)
|
|
Total Equity Capital
|
|
|
529,650
|
|
|
Total Liabilities and Equity Capital
|
|
|
4,960,521
|
|
Exhibit 25.2
File No.____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
¨
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
(Address of principal executive offices)
Janet V Banks
Assistant Vice President
1100 North Market Street
Wilmington, Delaware 19890
(302) 636-4261
(Name, address and telephone number of agent
for service)
Simmons First National Corporation
(Exact name of obligor as specified in its
charter)
|
Arkansas
|
71-0407808
|
|
(State of incorporation)
|
(I.R.S. employer identification no.)
|
|
501 Main Street
|
|
|
Pine Bluff, Arkansas
|
71601
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Subordinated Debt
(Title of the indenture securities)
|
|
Item 1.
|
GENERAL INFORMATION.
Furnish the following information as to the trustee:
|
|
|
(a)
|
Name and address of each examining or supervising authority
to which it is subject.
|
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington,
D.C.
|
|
(b)
|
Whether it is authorized to exercise corporate trust
powers.
|
Yes.
|
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 upon information furnished by the obligor, the obligor is not an affiliate of the
trustee.
|
|
|
Item
16.
|
LIST
OF EXHIBITS.
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
|
|
|
1.
|
A copy of the Charter for Wilmington Trust, National Association, incorporated by reference to Exhibit 1 of Form T-1.
|
|
|
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 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 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 form T-1.
|
|
|
6.
|
The consent of Trustee as required by Section 321(b) of
the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1.
|
|
|
7.
|
Current Report of the Condition of Trustee, published pursuant
to law or the requirements of its supervising or examining authority, attached as Exhibit 7.
|
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 19th day of March, 2018.
|
|
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:
|
|
1)
|
The name and address of each proposed nominee.
|
|
|
2)
|
The principal occupation of each proposed nominee.
|
|
|
3)
|
The total number of shares of capital stock of the association that will be voted for each proposed nominee.
|
|
|
4)
|
The name and residence address of the notifying shareholder.
|
|
|
5)
|
The number of shares of capital stock of the association owned by the notifying shareholder.
|
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes
cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any
time by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by
shareholders at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes
is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification,
or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect the director under
cumulative voting is voted against the director's removal.
FIFTH. The
authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred
dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the
laws of the United States.
No holder of shares of the capital stock
of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock
of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued,
or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may
from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must
be approved by a vote of holders of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these
articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles
of association, must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles
of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder
approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued
as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series
may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be
cast by the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise
provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date
authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed
or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional
shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue
fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share; (c) if there is an established and active market
in the association's stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price
through sale of the fraction, or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of
the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder
after having solicited and received sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata
to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise
the rights for shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association
upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights
unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions
as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date; and (2) that the
shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to
scriptholders.
The association, at any time and from time
to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations
classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange
or reclassification of all or part of securities into securities of another class or series.
SIXTH. The
board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board
and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders'
meetings and be responsible for authenticating the records of the association, and such other officers and employees as may be
required to transact the business of this association.
A duly appointed officer may appoint one
or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power
to:
|
|
1)
|
Define the duties of the officers, employees, and agents of the association.
|
|
|
2)
|
Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of
the association.
|
|
|
3)
|
Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions
consistent with applicable law.
|
|
|
4)
|
Dismiss officers and employees.
|
|
|
5)
|
Require bonds from officers and employees and to fix the penalty thereof.
|
|
|
6)
|
Ratify written policies authorized by the association's management or committees of the board.
|
|
|
7)
|
Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing
herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law,
and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital.
|
|
|
8)
|
Manage and administer the business and affairs of the association.
|
|
|
9)
|
Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the
affairs of the association.
|
|
|
10)
|
Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders.
|
|
|
12)
|
Generally perform all acts that are legal for a board of directors to perform.
|
SEVENTH. The
board of directors shall have the power to change the location of the main office to any other place within the limits of Wilmington,
Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association
for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any
other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of
directors shall have the power to establish or change the location of any branch or branches of the association to any other location
permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The
corporate existence of this association shall continue until termination according to the laws of the United States.
NINTH. The
board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the
stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the
laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall
be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists.
If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the shareholders’ meeting. Unless
otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called
annual or special meeting.
TENTH. For
purposes of this Article Tenth, the term “institution-affiliated party” shall mean any institution-affiliated party
of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his
or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually
incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal,
governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or
hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results
in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office
or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from
or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require
the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated
parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments
incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated
by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or
part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or
1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by
the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse
the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association
will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such
institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a
final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or
prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or
to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses
incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action
or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance
of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated
party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized
by these articles of association and (b) approval by the board of directors acting by a quorum consisting of directors who are
not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted
by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated
party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification,
the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the
remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs
of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members
of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members
of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification,
the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If
legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested
indemnification.
To the extent permitted under applicable
law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available
with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any
restrictive amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted
on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding,
or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which
may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her
heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the
advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed
exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators)
may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders,
a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being
hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement
of expenses provided in these articles of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise,
of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding
to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein
or in connection therewith or any part thereof.
If this Article Tenth or any part hereof
shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent
necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote
of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that
such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage
to pay or reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such
person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not,
be for the benefit of all institution-affiliated parties.
ELEVENTH. These
articles of association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law,
and in that case by the vote of the holders of such greater amount. The association's board of directors may propose one or more
amendments to the articles of association for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL
ASSOCIATION
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Effective as of April 18, 2017)
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting
.
The annual meeting of the shareholders to elect directors and transact whatever other business may properly come before the meeting
shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware,
at 1:00 o'clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board of directors may
designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall
be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed
to each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is
not made on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent
day within 60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by
shareholders representing two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first
class mail to shareholders.
Section 2. Special Meetings
.
Except as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any
time by the board of directors or by any one or more shareholders owning, in the aggregate, not less than fifty percent of the
stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid,
not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing
on the books of the association a notice stating the purpose of the meeting.
The board of directors may fix a
record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of
giving notice to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting
is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special meeting
may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such bylaws
may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders'
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date,
time or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or
the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to
the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned
meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors
is adjourned before the election takes place, at least ten days’ notice of the new election must be given to the shareholders
by first-class mail.
Section 3. Nominations of Directors
.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding
class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by
or on behalf of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president
of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to
any meeting of shareholders called for the election of directors;
provided, however,
that if less than 21 days' notice of
the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall
contain the following information to the extent known to the notifying shareholder:
|
|
(1)
|
The name and address of each proposed nominee;
|
|
|
(2)
|
The principal occupation of each proposed nominee;
|
|
|
(3)
|
The total number of shares of capital stock of the association that will be voted for each proposed
nominee;
|
|
|
(4)
|
The name and residence of the notifying shareholder; and
|
|
|
(5)
|
The number of shares of capital stock of the association owned by the notifying shareholder.
|
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote
tellers may disregard all votes cast for each such nominee.
Section 4. Proxies
. Shareholders
may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association
shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted
proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted
at any time during a meeting shall be accepted.
Section 5. Quorum
. A majority
of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum
may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the
votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law
or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the
election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1. Board of Directors
.
The board of directors shall have the power to manage and administer the business and affairs of the association. Except as expressly
limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number
. The
board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the bank
from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time
by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting
.
The secretary or treasurer, upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect
of their election and of the time at which they are required to meet at the main office of the association, or at such other place
in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers
of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present
may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings
.
The Board of Directors may, at any time and from time to time, by resolution designate the place, date and hour for the holding
of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without
notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at the main office or
other such place as the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday,
the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5. Special Meetings
.
Special meetings of the board of directors may be called by the Chairman of the Board of the association, or at the request of
two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person
stating the time and place of each special meeting.
Section 6. Quorum
. A majority
of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws,
but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice.
If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be
transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the
board of directors may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference
Telephone.
Any one or more members of the board of directors or any committee thereof may participate in a meeting of such
board or committees by means of a conference telephone or similar communications equipment allowing all persons participating in
the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at
such meeting.
Section 8. Procedures
.
The order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person
presiding at the meeting.
Section 9. Removal of Directors
.
Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred to the proposed action,
by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have
referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any
director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action,
by vote of a majority of the entire Board of Directors.
Section 10. Vacancies
.
When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according to the laws
of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special
meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum
of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at
a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder
entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies
being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that
will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power
over and is solely responsible for the management, supervision, and administration of the association. The board of directors may
delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally
ratify written policies authorized by committees of the board of directors before such policies become effective. Each committee
must have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the
association, who serve at the pleasure of the board of directors. Provisions of the articles of association and these bylaws governing
place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members
as well. The creation of a committee and appointment of members to it must be approved by the board of directors.
Section 1. Loan Committee
.
There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors annually or more often.
The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt,
to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts,
and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be
delegated. The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting
of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall
be entered in the minutes of the board of directors.
Section 2. Investment Committee
.
There shall be an investment committee composed of not less than 2 directors, appointed by the board of directors annually or more
often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend
amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to exercise, when the board
of directors is not in session, all other powers of the board of directors regarding investment securities that may be lawfully
delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular
meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3. Examining Committee
.
There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the
board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year
and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors
responsible only to the board of directors and to report the result of such examination in writing to the board of directors at
the next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate
internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner
of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of
the first paragraph of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be
given over to a duly constituted audit committee of the association's parent corporation by a resolution duly adopted by the board
of directors.
Section 4. Trust Audit Committee.
There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees
.
The board of directors may appoint, from time to time, from its own members, compensation, special litigation and other committees
of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
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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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(4)
|
Amend articles of association;
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(5)
|
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.
|
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)
|
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;
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(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;
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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)
|
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_____________.
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 19, 2018
|
By:
|
/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
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on December
31, 2017
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ASSETS
|
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Thousands of Dollars
|
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Cash and balances due from depository institutions:
|
|
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4,386,724
|
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|
Securities:
|
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5,615
|
|
|
Federal funds sold and securities purchased under agreement to resell:
|
|
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302,500
|
|
|
Loans and leases held for sale:
|
|
|
0
|
|
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Loans and leases net of unearned income, allowance:
|
|
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217,761
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Premises and fixed assets:
|
|
|
4,291
|
|
|
Other real estate owned:
|
|
|
354
|
|
|
Investments in unconsolidated subsidiaries and associated companies:
|
|
|
0
|
|
|
Direct and indirect investments in real estate ventures:
|
|
|
0
|
|
|
Intangible assets:
|
|
|
0
|
|
|
Other assets:
|
|
|
43,276
|
|
|
Total Assets:
|
|
|
4,960,521
|
|
|
LIABILITIES
|
|
Thousands of Dollars
|
|
|
Deposits
|
|
|
4,394,478
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
0
|
|
|
Other borrowed money:
|
|
|
0
|
|
|
Other Liabilities:
|
|
|
36,393
|
|
|
Total Liabilities
|
|
|
4,430,871
|
|
|
EQUITY CAPITAL
|
|
Thousands of Dollars
|
|
|
Common Stock
|
|
|
1,000
|
|
|
Surplus
|
|
|
395,536
|
|
|
Retained Earnings
|
|
|
133,452
|
|
|
Accumulated other comprehensive income
|
|
|
(338
|
)
|
|
Total Equity Capital
|
|
|
529,650
|
|
|
Total Liabilities and Equity Capital
|
|
|
4,960,521
|
|
![[MISSING IMAGE: LG_SIMMONS-FIRST.JPG]](https://content.edgar-online.com/edgar_conv_img/2018/03/19/0001174947-18-000410_LG_SIMMONS-FIRST.JPG)