Exhibit 1.1
E
XECUTION
V
ERSION
Investar Holding Corporation
$18,600,000
6.00%
Fixed-Floating Rate Subordinated Debentures due March 30, 2027
Underwriting Agreement
March 21, 2017
Sandler
O’Neill + Partners, L.P.
1251 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Ladies and Gentlemen:
Investar Holding Company, a Louisiana corporation (the “Company”) and the holding company for Investar Bank (the “Bank”),
confirms its agreement with Sandler O’Neill + Partners, L.P. (the “Underwriter”), subject to the terms and conditions stated herein, with respect to the issuance and sale by the Company and the purchase by the Underwriter, of
$18,600,000 in aggregate principal amount of the Company’s 6.00%
Fixed-to-Floating
Rate Subordinated Debentures due March 30, 2027 (the
“Securities”). The Securities are to be issued pursuant to an indenture to be dated as of March 24, 2017 (the “Base Indenture”) between the Company and Wilmington Trust, National Association, as trustee (the
“Trustee”), as supplemented by a first supplemental indenture thereto, to be dated as of the same date, between the Company and the Trustee (the “Supplemental Indentures” and, together with the Base Indenture, the
“Indenture”).
The Company understands that the Underwriter proposes to make a public offering of the Securities as soon as it
deems advisable after this Agreement has been executed and delivered. Securities issued in book-entry form shall be issued to Cede & Co. as nominee of The Depository Trust Company (“DTC”) pursuant to a blanket issuer letter of
representations to be entered into between the Company and DTC.
The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form
S-3
(No.
333-215238),
including the related preliminary prospectus or prospectuses, covering the registration of
various securities, including the Securities, under the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement is effective under the 1933 Act, the Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the “1939 Act”), and the Company has filed such post-effective amendments thereto as may be required prior to the execution of this Agreement and each such post-effective amendment is effective under the 1933 Act.
Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus supplement with
respect to the Securities in accordance with the provisions of Rule 430B (“Rule 430B”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. Any information included in each such prospectus supplement that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430B is referred to as “Rule 430B Information.” Each base prospectus and prospectus supplement used in connection with
the offering of the Securities that omitted Rule 430B Information is referred to herein collectively as a “preliminary prospectus.” Such registration statement, at any given time, including any amendments thereto, including post-effective
amendments, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein and the documents otherwise deemed to be a part thereof or included therein by the 1933 Act, is referred to herein as the
“Registration Statement;” provided, however, that the term “Registration Statement” without reference to a time means such registration statement as of the time of the first contract of sale for the Securities, which time shall
be considered the “new effective date” of such registration statement with respect to the Underwriter and the Securities (within the meaning of Rule 430B(f)(2)). The final base prospectus and the prospectus supplement, dated the date
hereof, including the documents incorporated by reference therein, are referred to herein collectively as the “Prospectus.”
For
purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any term sheet or any amendment or supplement to any of the foregoing shall be deemed to include the copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus, the Prospectus or the General Disclosure Package (as
defined herein) (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus,
the Prospectus or the General Disclosure Package, as the case may be, prior to the execution of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus, the
Prospectus or the General Disclosure Package shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is incorporated by reference in the Registration Statement,
any preliminary prospectus, the Prospectus or the General Disclosure Packages the case may be after execution of this Agreement.
For the
purpose of this Agreement, the term “subsidiary” or “subsidiaries” shall include each direct or indirect subsidiary of the Company listed on Schedule III hereto.
1. (a) The Company and the Bank, jointly and severally, represent and warrant to the Underwriter as of the date hereof, as of the Applicable
Time referred to in Section 1(a)(i) hereof, and as of the Closing Time referred to in Section 4 hereof, and agrees with the Underwriter, as follows:
(i) The Company is eligible to use Form
S-3
for the offering of the Securities and, at the time the
Registration Statement and any Rule 462(b) was filed and at the
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Applicable Time and the Closing Time, the Company satisfied, and will satisfy, the eligibility requirements for the use of Form
S-3
under the 1933 Act.
Each of the Registration Statement, and any Rule 462(b) Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the 1933 Act and no proceedings for that purpose have been instituted by or are pending before or, to the actual knowledge of the Company, are threatened by the Commission, and any request on
the part of the Commission to the Company for additional information has been complied with.
Each of the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto at the time it became effective, and at the Closing Time, complied and will comply with in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”) and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to that part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form
T-1)
under the 1939 Act of the Trustee. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was
delivered and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provided
,
however
, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described in Section 8(b) hereof.
The Final Term Sheet (as defined below), the Issuer-Represented General Free Writing Prospectus (as defined below) issued at or prior to the
Applicable Time (as defined below) and the Statutory Prospectus (as defined below) all considered together (collectively, the “General Disclosure Package”) as of the Applicable Time did not, and as of the Closing Time will not, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 4:00 p.m. (Eastern Time) on March 21, 2017.
“Final Term Sheet” means the final term sheet in the form set forth on Schedule I hereto, reflecting the final terms of the
Securities.
“Issuer-Represented Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Securities or of the offering that does
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not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records
pursuant to Rule 433(g).
“Issuer-Represented General Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule II hereto.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof. For purposes of this definition, information contained in a form of prospectus that is deemed
retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Statutory Prospectus as of the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b).
Each Issuer-Represented Free Writing Prospectus as of its issue date and at all subsequent times through the completion of the public offer
and sale of the Securities or until any earlier date that the issuer notified or notifies the Underwriter, did not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein, and any preliminary prospectus, the Statutory Prospectus or the Prospectus that has not been superseded or modified;
provided
,
however
, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in Section 8(b) hereof. If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer-Represented Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, (i) the Company has notified or will promptly notify the Underwriter and (ii) the Company has amended or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(ii) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply, in each case, in all material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the “1934 Act Regulations”) and, when read together with the other information in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration
Statement became effective, or any amendment thereto became effective,
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at the time the Prospectus was issued and at the Closing Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(iii) Any preliminary prospectus, the Prospectus and each Issuer-Represented
Free Writing Prospectus when filed, if filed by electronic transmission, pursuant to EDGAR (except as may be permitted by Regulation
S-T
under the 1933 Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the Securities.
(iv) The consolidated financial statements of the Company,
including the related schedules and notes, filed with the Commission as a part of the Registration Statement and included in any preliminary prospectus and the Prospectus (the “Financial Statements”) present fairly the consolidated
financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such Financial Statements, unless otherwise noted therein have been prepared in
conformity with generally accepted accounting principles in effect in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. To the knowledge of the Company, the consolidated financial statements and the
related schedules and notes thereto included in the Registration Statement and the Prospectus present fairly the financial position of Citizens Bancshares, Inc. at the dates indicated and the results of operations, changes in equity and cash flows
for the periods specified, and said financial statements have been prepared in conformity with United States GAAP applied on a consistent basis throughout the period involved. The selected financial data and the summary financial information
included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information therein and have been prepared on a basis consistent with that of the audited consolidated financial
statements contained in the Registration Statement, any preliminary prospectus and the Prospectus. No other financial statements or supporting schedules are required to be included in the Registration Statement, any preliminary prospectus and the
Prospectus. The statement of income data, balance sheet data and earnings per share data set forth in the Prospectus under the caption “Selected Financial Information” fairly present the information therein on a basis consistent with that
of the audited financial statements contained in the Registration Statement, any preliminary prospectus and the Prospectus. To the extent applicable, all disclosures contained in the Prospectus regarding
“non-GAAP
financial measures” as such term is defined by the rules and regulations of the Commission comply with Regulation G of the 1934 Act, the rules and regulations of the Commission under the
1934 Act (the “1934 Act Regulations”) and Item 10(e) of Regulation
S-K.
The pro forma financial statements and the related notes thereto included in the Registration Statement, General Disclosure
Package and the Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. The interactive
data in eXtensible Business Reporting Language included in the Registration Statement, the General Disclosure Package and the Prospectus presents fairly in all material respects the information included therein and has been prepared in all material
respects in accordance with the Commission’s rules and guidelines applicable thereto.
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(v) Postlewaite & Netterville, APAC, the independent registered public accounting firm
that audited the financial statements of the Company and its subsidiaries, that are included in the Registration Statement and the Prospectus, is an independent registered public accounting firm as required by the 1933 Act and the 1933 Act
Regulations, and, to the actual knowledge of the Company, such accountants are not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and the related rules and regulations of
the Commission.
Hannis T. Bourgeois, LLP, the independent registered public accounting firm that audited the financial statements of
Citizens Bancshares, Inc., that are included in the Prospectus, is an independent registered public accounting firm as required by the 1933 Act and the 1933 Act Regulations.
(vi) The statistical and market related data contained in the Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources which the Company believes are reliable and accurate.
(vii) This Agreement has been duly authorized,
executed and delivered by the Company and, when duly executed by the Underwriter, will constitute the valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and except as any indemnification or contribution provisions thereof may
be limited under applicable securities laws and banking laws.
(viii) Since the date of the most recently dated audited financial
statements included in the Registration Statement, the General Disclosure Package and the Prospectus, (A) the Company and its subsidiaries, considered as one enterprise, have not sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement, the General
Disclosure Package and the Prospectus and there has not been any material change in the capital stock or long-term debt of the Company and its subsidiaries or any material adverse change, or any development known to the Company that is reasonably
expected to cause a prospective material adverse change, in or affecting the general affairs, management, earnings, business, properties, assets, consolidated financial position, business prospects, consolidated shareholders’ equity or
consolidated results of operations of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”) other than as set forth or contemplated in the
Registration Statement, the General Disclosure Package and the Prospectus, (B) there have been no transactions entered into by the Company or its subsidiaries which are material with respect to the Company and its subsidiaries considered as one
enterprise, otherwise than as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any
class of its capital stock, otherwise than as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
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(ix) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them, in each case free and clear of all mortgages, pledges, security interests, claims, restrictions, liens, encumbrances and defects except such as are described generally in
the Registration Statement, the General Disclosure Package and the Prospectus or such as would not have a Material Adverse Effect, and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, and neither the Company nor its
subsidiaries has any written or oral notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or its subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiaries to the continued possession of the leased or subleased premises under any such lease or sublease.
(x) The Company is a registered bank holding company under the Bank Holding Company Act of 1956, as amended, and has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the State of Louisiana, with the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing under the laws of
each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected
to result in a Material Adverse Effect.
(xi) Each of the Company’s subsidiaries has been duly incorporated or organized and is
validly existing as a corporation or trust in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or trust company power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified as a foreign entity to transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business, except in each case where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. The activities of the
Company’s subsidiaries are permitted of subsidiaries of a bank holding company under applicable law and the rules and regulations of the Federal Reserve Board (the “FRB”) set forth in Title 12 of the Code of Federal Regulations.
Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock or equity interests of each such subsidiary has been duly authorized and validly issued,
is fully paid and
non-assessable
(to the extent applicable) and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock or equity interests of any subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary. There are no outstanding rights, warrants or options
to acquire or instruments convertible into or exchangeable for any capital stock or equity securities of any of the subsidiaries. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the
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Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distributions on such subsidiary’s
capital stock or common securities, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company.
The only subsidiaries of the Company are the subsidiaries listed on Schedule III hereto.
(xii) The Company has an authorized
capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Capitalization,” and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and
non-assessable
and have been issued in compliance with applicable federal and state securities laws. None of the outstanding shares of capital stock were issued in
violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. The description of the Company’s stock option, warrant, stock bonus, restricted stock unit and other
stock plans or compensation arrangements and the options, warrants, restricted stock units or other rights granted thereunder, set forth in the Registration Statement, the General Disclosure Package and the Prospectus, accurately and fairly
presents, in all material respects, the information required to be described therein with respect to such plans, arrangements, options, warrants and rights.
(xiii) The Indenture has been duly authorized by the Company and duly qualified under the 1939 Act and, when duly executed and delivered by
the Company and the Trustee, will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law and except as any indemnification or contribution provisions thereof may be limited under applicable securities and banking laws). The Indenture conforms in all material respects to the description of the Indenture contained in the
Registration Statement, the General Disclosure Package and the Prospectus.
(xiv) Except as disclosed in each of the Registration
Statement, the General Disclosure Package and the Prospectus, (A) there are no outstanding rights (contractual or otherwise), warrants or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings
with respect to the sale or issuance of, any shares of capital stock of or other equity interest in the Company and (B) there are no contracts, agreements or understandings between the Company and any person granting such person the right to
require the Company to file a registration statement under the 1933 Act or otherwise register any securities of the Company owned or to be owned by such person.
(xv) The Securities to be issued and sold by the Company to the Underwriter hereunder have been duly and validly authorized and, when
delivered to and paid for by the Underwriter, will have been duly executed by the Company in accordance with the provisions of the Indenture. The Securities, when authenticated, issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price for the Securities as provided in this Agreement, will constitute valid and legally binding obligations of the Company
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enforceable against the Company in accordance with their terms and the terms of the Indenture, except as may be limited by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law
and except as any indemnification or contribution provisions thereof may be limited under applicable securities and banking laws), and will be entitled to the benefits of the Indenture.
(xvi) The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(xvii) The issue and sale of the Securities by the Company and the compliance by the Company with all of the provisions of this Agreement and
the consummation by the Company of the transactions herein contemplated have been duly authorized by all necessary corporate action of the Company and do not and will not, whether with or without the giving of notice or passage of time or both,
(A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or result in a Repayment Event (as defined below) under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject,
(B) result in any violation of the provisions of the articles of incorporation or bylaws of the Company or any of its subsidiaries, or (C) result in any violation of any statute or any order, rule or regulation of any federal, state, local
or foreign court, arbitrator, regulatory authority or governmental agency (each a “Governmental Entity”) or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except for in the case of clauses
(A) and (C) those conflicts, breaches, violations, defaults or Repayment Events that would not result in a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any such court or
Governmental Entity is required for the issue and sale of the Securities, the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated by this Agreement, except the registration
under the 1933 Act of the Securities and except as may be required under the rules and regulations of the Nasdaq Stock Market (“NASDAQ”) or the Financial Industry Regulatory Authority (“FINRA”) and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriter. As used herein, a “Repayment Event” means any
event or condition, the occurrence or existence of which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries, prior to its scheduled maturity.
(xvi) Neither the
Company nor any of its subsidiaries is (A) in violation of its articles of incorporation or its bylaws or (B) in breach, violation or default (with or without notice or lapse of time or both) in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it
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or any of its properties may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject except for such breaches, violations or defaults that would
not result in a Material Adverse Effect.
(xvii) Except as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, the Company and its subsidiaries are conducting their respective businesses in compliance in all material respects with all federal, state, local and foreign statutes, laws, rules, regulations, decisions, directives and orders
applicable to them, (including, without limitation, all regulations and orders of, or agreements with, the FRB), the Louisiana Office of Financial Institutions (the “OFI”), and the Federal Deposit Insurance Corporation (the
“FDIC”), the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, all other applicable fair lending laws or other laws relating to discrimination and the Bank Secrecy Act and
Title III of the USA Patriot Act), and since January 1, 2016, neither the Company nor its subsidiaries has received any written or oral communication from any Governmental Entity asserting that the Company or any of its subsidiaries is not in
material compliance with any statute, law, rule, regulation, decision, directive or order.
(xviii) There are no legal or governmental
actions or suits, investigations, inquiries or proceedings before or by any court or Government Entity, now pending or, to the actual knowledge of the Company, threatened or contemplated, to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the subject (A) that is required to be disclosed in the Registration Statement by the 1933 Act or the 1933 Act Regulations and not disclosed therein or (B) which, if
determined adversely to the Company or any of its subsidiaries, would be reasonably expected to result, individually or in the aggregate, in a Material Adverse Effect; all pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to their respective businesses, are not reasonably expected to result,
individually or in the aggregate, in a Material Adverse Effect and there are no contracts or documents of the Company or any of its subsidiaries which would be required to be described in the Registration Statement or to be filed as exhibits thereto
by the 1933 Act or the 1933 Act Regulations which have not been so described or filed.
(ix) Each of the Company and its subsidiaries
possesses all permits, licenses, approvals, consents and other authorizations of (collectively, “Governmental Licenses”), and have made all filings, applications and registrations with, all Governmental Entities necessary under applicable
law to permit the Company or such subsidiaries to conduct the business now operated by the Company or its subsidiaries, except for any of the foregoing that would not have a Material Adverse Effect. The Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where the failure to so possess, file, apply, register or comply would not, individually or in the aggregate, have a Material Adverse Effect. All of the Governmental Licenses
currently held by the Company or its subsidiaries are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually
or in the aggregate, have a Material Adverse Effect, and neither the Company nor any of its subsidiaries have received any written notice of proceedings relating to the revocation or modification of any
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such Governmental Licenses. Neither the Company nor its subsidiaries have failed to file with applicable regulatory authorities any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to so file in compliance would not, individually or in the aggregate, have a Material Adverse Effect; all such filings were in compliance in all material respects with applicable laws
when filed and no material deficiencies have been asserted in writing by any regulatory commission, agency or authority with respect to any such filings or submissions.
(xx) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and except as would not,
individually or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any applicable judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) each of the Company and its subsidiaries has all permits, authorizations and approvals required to be held by it under any applicable Environmental Laws
and are each and in compliance with the requirements of each such permit, authorization and approval held by it, (C) there are no pending or, to the actual knowledge of the Company, threatened, administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries, and (D) to the knowledge of the Company, there
are no events or circumstances that would reasonably be expected to form the basis of an order for
clean-up
or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against
or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxi) The Company and its
subsidiaries own or possess adequate rights to use or can acquire on reasonable terms ownership or rights to use all patents, patent applications, patent rights, licenses, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights,
know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures and excluding generally commercially
available “off the shelf” software programs licensed pursuant to shrink wrap or “click and accept” licenses) and licenses (collectively, “Intellectual Property”) necessary for the conduct of their respective businesses,
except where the failure to own or possess such rights would not, individually or in the aggregate, result in a Material Adverse Effect, and have not received any written notice of any claim of infringement or conflict with, any such rights of
others or any facts or circumstances that would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, except where such infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would not result in a Material Adverse Effect.
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(xxii) No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of its subsidiaries on the other hand, which is required to be disclosed in the Registration Statement and the Prospectus by the
1933 Act or the 1933 Act Regulations which has not been so disclosed.
(xxiii) Neither the Company nor any of its subsidiaries is or,
after giving effect to the offering and sale of the Securities, and after receipt of payment for the Securities and the application of the net proceeds as described in each of the Registration Statement, the General Disclosure Package and the
Prospectus, will be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xxiv) The Company is in compliance with the provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission thereunder
applicable to the Company and the Company is in compliance with the applicable rules and regulations of the NASDAQ, except where the failure to so comply would not, individually or in the aggregate, have a Material Adverse Effect.
(xxv) Neither the Company nor any of its subsidiaries, nor any affiliates of the Company or any of its subsidiaries, has taken and will not
take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.
(xxvi) Neither the Company nor any of its subsidiaries nor any director, officer, employee or agent or other person acting on behalf of the
Company or any of its subsidiaries has (A) used any corporate funds of the Company or any of its subsidiaries for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (B) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds of the Company or any of its subsidiaries, (C) violated or is in violation of any provision of the Foreign Corrupt Practices Act of
1977 and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith, (D) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment, (E) materially violated
applicable privacy of customer information requirements contained in any federal or state privacy act laws and regulations; or (F) made any payment of funds to the Company or any of its subsidiaries or received or retained funds in violation of
any law, rule or regulation, which payment, receipt or retention of funds is of a character required to be disclosed in each of the Registration Statement, General Disclosure Package and the Prospectus, that is not described in each of the
Registration Statement, General Disclosure Package and the Prospectus as required.
(xxvii) The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization, and (D) the
recorded accountability for assets is
- 12 -
compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and each of its subsidiaries maintain a system of internal
control over financial reporting (as such term is defined in Rule
13a-15(f)
and Rule
15d-15(f)
under the 1934 Act), that complies with the requirements of the 1934 Act,
as applicable to them; the Company’s internal control over financial reporting is effective; and since the end of the Company’s most recent audited fiscal year, there has been (X) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (Y) no change in the Company’s internal control over financial reporting that has materially affected adversely, or is reasonably likely to materially affect adversely, the
Company’s internal control over financial reporting.
(xxviii) The Company maintains “disclosure controls and procedures”
(as such term is defined in Rule
13a-15(e)
and Rule
15d-15(f)
under the 1934 Act) that comply with the requirements of the 1934 Act that are applicable to an issuer that
has a class of securities registered under Section 12 of the 1934 Act.
(xxix) Neither the Company nor the Bank is in violation of
any order or directive from the FRB, the OFI, the FDIC, the Commission or any regulatory authority to make any material change in the method of conducting its respective businesses; the Company and the Bank have conducted and are conducting their
business so as to comply in all material respects with all applicable statutes, regulations and administrative and court decrees (including, without limitation, all regulations, decisions, directives and orders of the FRB, the OFI, the FDIC and the
Commission). Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is subject or is party to, or has received any notice or advice that any of them may
become subject or party to any investigation with respect to, any corrective, suspension or
cease-and-desist
order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment letter, or is subject to any directive by, or has been a recipient of any supervisory letter from any Regulatory Agency (as defined
below) that currently relates to or restricts in any respect the conduct of their business or that in any manner relates to capital adequacy, credit policies or management nor at the request or direction of any Regulatory Agency has the Company or
any of its subsidiaries adopted any board resolution that is reasonably likely to have a Material Adverse Effect (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries been advised by any Regulatory Agency that it
is considering issuing or requesting any such Regulatory Agreement or any such Regulatory Agreement is pending or, to the actual knowledge of the Company, threatened. Except as required to be disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, the Company and its subsidiaries are each in compliance with all Regulatory Agreements, if any, and there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report
or statement relating to any examinations of the Company or any of its subsidiaries which, in the reasonable judgment of the Company, currently results in or would reasonably be expected to result in a Material Adverse Effect. As used herein, the
term “Regulatory Agency” means any Governmental Entity having supervisory or regulatory authority with respect to the Company or any of its subsidiaries, including, but not limited to, any federal or state agency charged with the
supervision or regulation of depositary institutions or holding companies of depositary institutions, or engaged in the insurance of depositary institution deposits.
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(xxx) Each “employee benefit plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) is
in compliance with ERISA, except where the failure to be in compliance with ERISA would not result in a Material Adverse Effect. “ERISA Affiliate” means, with respect to the Company or a subsidiary, any member of any group of organizations
described in Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company or such subsidiary is a member. No
“reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). None of the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any “employee benefit plan” or (B) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that
is intended to be qualified under Section 401(a) of the Code has received a favorable determination or approval letter from the Internal Revenue Service regarding its qualification under such section, or is maintained in the form of a
pre-approved
document, the sponsor of which has obtained a favorable determination with respect to such
pre-approved
document, and nothing has occurred whether by action or
failure to act, which would cause the loss of such qualification.
(xxxi) The Company and its subsidiaries, taken as a whole, are insured
by insurers of recognized financial responsibility against such losses and risks and in such amounts that the Company reasonably believes are prudent and customary in the business in which the Company and its subsidiaries are engaged. Neither the
Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage from insurers similar to its current insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect. Neither the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(xxxii) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would give rise to a valid claim against the Company, or the Underwriter, for a brokerage commission, finder’s fee or other like payment in connection with the sale of the
Securities.
(xxxiii) The Company and its consolidated subsidiaries have (i) filed all necessary federal, state and foreign income
and franchise tax returns or have properly requested extensions thereof and all such tax returns are true, complete and correct in all material respects and (ii) have paid all taxes required to be paid by any of them except for any such tax,
assessment, fine or penalty that is currently being contested in good faith by appropriate actions and except for such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the aggregate, be reasonably expected
to have a Material Adverse Effect. To the extent required by GAAP, the Company has made adequate charges, accruals and reserves in the applicable
- 14 -
Financial Statements referred to in Section 1(a)(iv) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or
its consolidated subsidiaries has not been finally determined.
(xxxiv) No labor dispute with the employees of the Company or its
subsidiaries exist or, to the knowledge of the Company, is imminent, which, in any case, would reasonably be expected to result in a Material Adverse Effect.
(xxxv) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the operations of the Company
and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, money
laundering statutes applicable to the Company and its subsidiaries, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Money Laundering Laws is pending
or, to the actual knowledge of the Company, threatened.
(xxxvi) The Company has not distributed and, prior to the later to occur of
(i) the Closing Time and (ii) completion of the distribution of the Securities, will not distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the
Securities other than the Registration Statement, any preliminary prospectus, the Prospectus or such other materials, if any, permitted by the 1933 Act or the 1933 Act Regulations and approved by the Underwriter.
(xxxvii) No forward-looking statement (within the meaning of Section 27A of the 1933 Act and Section 21E of the 1934 Act) contained in the
Registration Statement, the General Disclosure Package, the Prospectus and any Issuer-Represented Free Writing Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(xxxviii) Neither the Company nor any of its subsidiaries has participated in any reportable transaction, as defined in Treasury Regulation
Section 1.6011-(4)(b)(1).
(xxxix) Each of the Company and its subsidiaries has good and marketable title to all securities held by it
(except securities sold under repurchase agreements, pledged to secure deposits or derivative contracts or held in any fiduciary or agency capacity) free and clear of any lien, claim, charge, option, encumbrance, mortgage, pledge or security
interest or other restriction of any kind, except to the extent such securities are pledged in the ordinary course of business to secure obligations of the Company or its subsidiaries and except for such defects in title or liens, claims, charges,
options, encumbrances, mortgages, pledges or security interests or other restrictions of any kind that would not, individually or in the aggregate, result in a Material Adverse Effect. Such securities are valued on the books of the Company and its
subsidiaries in accordance with GAAP.
- 15 -
(xl) Any and all material swaps, caps, floors, futures, forward contracts, option agreements
(other than employee stock options and restricted stock units) and other derivative financial instruments, contracts or arrangements, whether entered into for the account of the Company or its subsidiaries or for the account of a customer of the
Company or its subsidiaries, were entered into in the ordinary course of business and in accordance with applicable laws, rules, regulations and policies of all applicable regulatory agencies and with counterparties reasonably believed to be
financially responsible at the time of execution of such instruments, contracts or arrangements. The Company and its subsidiaries have duly performed all of their respective obligations thereunder to the extent that such obligations to perform have
accrued, and there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder, except for such breaches, violations, defaults, allegations or assertions that, individually or in the aggregate, would not
result in a Material Adverse Effect.
(xli) Neither the Company nor, to the actual knowledge of the Company, any director, officer,
employee or affiliate of the Company is (a) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or (b) located, organized or resident in a country
or territory that is the subject of such sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria. The Company will not, directly or indirectly, use the proceeds of the offering contemplated hereby, or lend,
contribute or otherwise make available such proceeds to its subsidiaries, joint venture partner of the Company or any of its subsidiaries or other person or entity, for the purpose of financing the activities of any person, or engage in dealings or
transactions with any person, or in any country, or territory, subject to any U.S. sanctions administered by OFAC.
(xlii) Except as
described in the Registration Statement, General Disclosure Package or the Prospectus, there are no material
off-balance
sheet transactions, arrangements, obligations (including contingent obligations), or any
other relationships with unconsolidated entities or other persons to which the Company or any of its subsidiaries is a party, that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xliii) To the actual knowledge of the Company, after inquiry of its officers and directors, there are no affiliations with any FINRA member
firm among the Company’s officers or directors or principal shareholders, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, or as otherwise disclosed in writing to the Underwriter.
(xliv) Other than the Securities, the Company has no debt securities to which a rating is accorded by any “nationally recognized
statistical rating organization”, as defined in Section 3(a)(62) of the 1934 Act.
(xlv) The Agreement and Plan of Reorganization,
dated as of March 8, 2017, by and between the Company, a wholly-owned subsidiary of the Company and Citizens Bancshares, Inc., has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by
general equitable principles.
- 16 -
(b) The Bank represents and warrants to the Underwriter as of the date hereof, as of the
Applicable Time referred to in Section 1(a)(i) hereof and as of the Closing Time referred to in Section 4 hereof, and agrees with the Underwriter, as follows:
(i) The Bank has been duly chartered and is validly existing as a Louisiana-chartered bank in good standing under the laws of the
jurisdiction of its organization, with the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement. The Bank
is the only depository institution subsidiary of the Company and the Bank is a member in good standing of the Federal Home Loan Bank System. The Bank is duly qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected to
result in a Material Adverse Effect. The activities of the Bank are permitted under the laws and regulations of the State of Louisiana and the deposit accounts in the Bank are insured up to the applicable limits by the FDIC and no proceeding for the
termination or revocation of such insurance is pending or, to the knowledge of the Bank, threatened against the Bank.
(ii) The Bank is
not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it or any of its properties may be bound or to which any of the property or assets of the Bank is subject except for such defaults that would not be expected to result in a Material Adverse
Effect.
(iii) This Agreement has been duly authorized, executed and delivered by the Bank and, when duly executed by the Underwriter,
will constitute the valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors’ rights generally or by general equitable principles and except as any indemnification or contribution provisions thereof may be limited under applicable securities laws and banking laws.
(iv) The execution and delivery of this Agreement by the Bank and the compliance and performance by the Bank with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated have been duly authorized by all necessary corporate action on the part of the Bank and do not and will not whether with or without the giving of notice or passage or time
or both conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or result in a Repayment Event under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Bank is a party or by which the Bank is bound or to which any of the property or assets of the Bank is subject, nor will such action result in any violation of the provisions of the articles of incorporation or bylaws of the Bank or any
statute or any order, rule or regulation of any Governmental Entity having jurisdiction over the Bank or any of its properties, except for those conflicts, breaches, violations, defaults or Repayment Events that would not result in a Material
Adverse Effect.
(c) Any certificate signed by an officer of the Company or the Bank and delivered to the Underwriter or to counsel for
the Underwriter in connection with the offering of Securities shall be deemed to be a representation and warranty by the Company and/or the Bank, as applicable, to the Underwriter as to the matters set forth therein.
- 17 -
2. Subject to the terms and conditions herein set forth, (the Company agrees to issue and sell to
the Underwriter, and the Underwriter agrees to purchase from the Company, at a price equal to 98.5% of the aggregate principal amount of, the Securities.
3. Upon the authorization by the Underwriter of the release of the Securities, the Underwriter proposes to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by the Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as the Underwriter may request upon at least forty-eight hours prior notice to the Company shall be delivered by or on behalf of the Company to the Underwriter, through the
facilities of The Depository Trust Company (“DTC”), for the account of the Underwriter, against payment by or on behalf of the Underwriter of the purchase price therefor by wire transfer of Federal (same day) funds to the account specified
by the Company, to the Underwriter at least forty-eight hours in advance. The time and date of such delivery and payment shall be 10:00 A.M. (Eastern time) on March 24, 2017 (such time and date of payment and delivery being herein called
“
Closing Time
”).
(b) The documents to be delivered at Closing Time by or on behalf of the parties hereto, including the
cross receipt for the Initial Securities, will be delivered at the offices of Kilpatrick Townsend & Stockton LLP, 607 14
th
Street, N.W., Suite 900, Washington, D.C. 20005, or at such
other place as shall be agreed upon by the Underwriter and the Company, at 10:00 A.M. (Eastern time) on March 24, 2017, or such other time and date as the Underwriter and the Company may agree upon in writing.
5. The Company further covenants and agrees with the Underwriter as follows:
(a) The Company will prepare the Prospectus in a form approved by the Underwriter and will file such Prospectus pursuant to Rule 424(b) under
the 1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430B under the 1933 Act and will
make no further amendment or any supplement to the Registration Statement or the Prospectus that shall be disapproved by the Underwriter promptly after reasonable notice thereof. The Company will advise the Underwriter, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and furnish the Underwriter with copies
thereof and will advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order with respect to the Registration Statement or of any order preventing or suspending the
- 18 -
use of any preliminary prospectus, any Issuer-Represented Free Writing Prospectus, or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, any preliminary prospectus, any Issuer-Represented Free
Writing Prospectus or the Prospectus or for additional information, and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus, any Issuer-Represented Free Writing Prospectus,
or the Prospectus or suspending any such qualification, promptly use its best efforts to obtain the withdrawal of such order.
(b) The
Company will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)), Term Sheet or any amendment, supplement or revision to either any preliminary
prospectus (including the prospectus included in the Registration Statement at the time it became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will deliver, upon request, to the Underwriter and counsel for the Underwriter, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver, upon request, to the Underwriter, without
charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits). The copies of the Registration Statement and each amendment thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Promptly from time to time, the Company will take such action as the Underwriter may reasonably request to qualify the Securities for
offering and sale under the securities laws of such states and other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
In each state or other jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such state or other jurisdiction to continue such qualification in effect until
the completion of the distribution of the Securities. The Company will also supply the Underwriter with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdiction as
the Underwriter may reasonably request.
(e) On the business day next succeeding the date of this Agreement and from time to time, the
Company will furnish the Underwriter with copies of the Prospectus in New York City in such quantities as the Underwriter may from time to time reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration
of nine months after the
- 19 -
time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the 1933 Act, notify the Underwriter and upon the Underwriter’s request prepare and furnish
without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or
effect such compliance, and in case the Underwriter is required to deliver a prospectus in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon the Underwriter’s request
but at the expense of the Underwriter, prepare and deliver to the Underwriter as many copies as it may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the 1933 Act.
(f) The Company will comply with the 1933 Act and the 1933 Act Regulations , the 1939 Act and the 1939 Act Regulation and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriter or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 5(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the Underwriter such number of copies of such amendment or supplement as the Underwriter may reasonably request.
(g) The Company will make generally available to its securityholders as soon as practicable, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158).
(h) During a period of three years from the effective date of the Registration Statement, the Company will furnish to the holders of the
Securities as soon as practicable after the end of each fiscal year an annual report (including balance sheets and statements of income, shareholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to
such holders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided
- 20 -
that if the Company files an annual report on Form
10-K
or quarterly report on Form
10-Q
by means of EDGAR, the
Company shall be deemed to have furnished such report to such holders in compliance with the requirements of this section.
(i) During a
period of three years from the effective date of the Registration Statement, the Company will furnish to the Underwriter copies of all reports or other communications (financial or other) furnished to holders of the Securities, and to deliver to the
Underwriter as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed;
provided
that
if the Company files any such reports or other communications of the type contemplated hereby with the Commission and such report or materials are or will become available on EDGAR, the Company shall be deemed to have furnished such report or other
communications to the Underwriter in compliance with the requirements of this section.
(j) The Company will use the net proceeds received
by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds.”
(k) If the Company elects to rely on Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 4:00 p.m., Eastern time on the date of this Agreement, or such other time as may be reasonably agreed between the Company and the Underwriter, and the Company shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(l) Until completion of the distribution of the Securities, the Company will file (i) all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations and (ii) such information on Form
10-K
or Form
10-Q
as may be required by Rule 463 under the 1933 Act.
(m) During the period of 180 days from
the date of the Prospectus, unless it obtains the prior consent of the Underwriter, the Company will not make any offer relating to the Securities that would constitute an Issuer-Represented Free Writing Prospectus and has complied and will comply
with the requirements of Rule 433 applicable to any Issuer-Represented Free Writing Prospectus, including where and when required timely filing with the Commission, legending and record keeping.
(n) During the period beginning on the date hereof and continuing to and including the Closing Time and the latest additional time of
purchase, if any, of the Securities, the Company will not, and will not permit any subsidiary to, without the prior written consent of the Underwriter, directly or indirectly, issue, sell, offer or contract to sell, grant any option for the sale of,
or otherwise transfer or dispose of, any debt securities or nonconvertible preferred stock of the Company or any of its subsidiaries.
(o)
The Company shall comply, and to use its commercially reasonable efforts to cause the Company’s directors and officers, in their capacities as such, to comply, in all material respects, with all effective applicable provisions of the
Sarbanes-Oxley Act and the rules and regulations thereunder.
- 21 -
(p) The Company will not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the price of any securities of the Company, whether to facilitate the sale or resale of the Securities or otherwise, and the Company will, and shall use its commercially
reasonable efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M with respect to any securities of the Company. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with
respect to the Securities or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly upon notice from the Underwriter (or, if later, at the time stated in the notice), the Company will, and
shall use its commercially reasonable efforts to cause each of its affiliates to, comply with Rule 102 as though such exception were not available, but the other provisions of Rule 102 (as interpreted by the Commission) did apply.
(q) The Company will prepare the Final Term Sheet in form and substance satisfactory to the Underwriter and the Company represents and agrees
that, unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Underwriter and the Company is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with
the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. Notwithstanding the foregoing, the Company consents to the use by the
Underwriter of a free writing prospectus that contains only (a)(i) information describing the preliminary terms of the Securities or their offering or (ii) information meeting the requirements of Rule 134 of the 1933 Act Regulations or
(iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet or (b) other customary information that is neither “issuer information,” as defined in Rule 433,
nor otherwise an Issuer-Represented Free Writing Prospectus.
(r) The Company shall use its reasonable best efforts to permit the
Securities to be eligible for clearance, settlement and trading in book-entry-only form through the facilities of DTC.
6. The Company
covenants and agrees with the Underwriter that the Company will pay or cause to be paid the following, whether or not the transactions contemplated herein are completed: (i) the reasonable
out-of-pocket
expenses incurred by the Underwriter in connection with its engagement, including without limitation, outside legal fees and expenses, marketing, syndication and travel expenses (coach class for
domestic travel); (ii) the cost of obtaining all securities and bank regulatory approvals, including any required FINRA fees, including the filing fees incident thereto; (iii) all fees and disbursements of the Company’s counsel and
accountants in connection with the registration of the Securities under the 1933 Act and all other expenses in connection with the preparation, printing and filing of amendments and supplements thereto and
- 22 -
the mailing and delivering of copies thereof to the Underwriter; (iv) all expenses in connection with the qualification of the Securities for offering and sale under state securities as
provided in Section 5(d) hereof, including the fees and disbursements of counsel for the Underwriter in connection with such qualification and in connection with the Blue Sky survey; (v) the cost of printing and reproducing this Agreement, the
Blue Sky survey, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (vi) the cost and charges of any transfer agent or registrar;
(vii) the costs and expenses of the Company relating to investor presentations or any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the Underwriter and officers of the Company and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show with the consent of the Company; (viii) the fees and expenses incurred in connection with having the Securities eligible for clearance, settlement and trading through the
facilities of DTC; (ix) the fees and expenses of the Trustee, including fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (x) any fees payable in connection with the rating of the
Securities; and (xi) all other costs and expenses incident to the performance of the Company’s obligations hereunder which are not otherwise specifically provided for in this Section 6; provided, however, that the aggregate amount of
all payments and reimbursements by the Company of costs and expenses of the Underwriter pursuant to this Section 6 and pursuant to Section 6 of that certain Underwriting Agreement between the Company and the Underwriter relating to the
concurrent offering of common stock, shall not exceed $200,000.
7. The obligations of the Underwriter hereunder to purchase and pay for
the Securities as provided herein on the Closing Time shall be subject, in the Underwriter’s discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of such Closing Time,
true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with Section 5(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the requirements of Rule 430B), if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective by 4:00 p.m., Eastern Time, on the date of this Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Underwriter’s reasonable satisfaction,
the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time periods prescribed in such filings by Rule 433, and FINRA
shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
- 23 -
(b) At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Fenimore, Kay, Harrison & Ford, LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(c) At the Closing Time, the Underwriter shall have received the opinion, dated as of Closing Time, of Kilpatrick Townsend & Stockton
LLP, counsel for the Underwriter. The opinion shall address the matters as the Underwriter may reasonably request. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State
of New York and the federal law of the United States, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(d)(i) On the date of this
Agreement and at the Closing Time, Postlewaite & Netterville, APAC shall have furnished to the Underwriter a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included in accountants “comfort letters” to Underwriter with respect to the financial statements of the Company and certain financial information contained in the Registration
Statement, the General Disclosure Package and the Prospectus, provided that the letter delivered as of the Closing Time shall use a
“cut-off”
date no more than three business days prior to the
Closing Time.
(ii) On the date of this Agreement and at the Closing Time, Hannis T. Bourgeois, LLP shall have furnished to the
Underwriter a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants “comfort letters”
to Underwriter with respect to the financial statements of Citizens Bancshares, Inc. and certain financial information contained in the General Disclosure Package and the Prospectus, provided that the letter delivered as of the Closing Time shall
use a
“cut-off”
date no more than three business days prior to the Closing Time.
(e) No
event or condition of a type described in Section 1(a)(viii) shall have occurred or shall exist, otherwise than as set forth or contemplated in the Registration Statement, General Disclosure Package and the Prospectus, the effect of which is in the
judgment of the Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Closing Time on the terms and in the manner contemplated in
the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking
activities declared by either Federal, New York or Louisiana authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United
- 24 -
States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere,
including without limitation, as a result of terrorist activities occurring after the date hereof, if the effect of any such event specified in clause (iv) or (v), in the reasonable judgment of the Underwriter makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Closing Time on the terms and in the manner contemplated in the Prospectus.
(g) The Underwriter shall have received a certificate of the Chief Executive Officer of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time, to the effect that (i) no Material Adverse Effect has occurred, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and
effect as though made at and as of Closing Time, and (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are to their knowledge contemplated by the Commission, and (iv) no event of default under the Indenture
or default with notice and/or lapse of time that would be an event of default in respect of the Securities has occurred and is continuing.
(h) The Underwriter shall have received a certificate from the President or a Vice President of the Bank and of the chief financial or chief
accounting officer of the Bank, dated as of the Closing Time to the effect that the representations and warranties in Section 1(b) are true and correct with the same force and effect as though made at and as of Closing Time.
(i) Since the execution of this Agreement, there shall not have been any decrease in or withdrawal of the rating of any securities of the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the 1934 Act) of which the Company has notice or any notice given of any intended or
potential decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Time, the Company, the Trustee, as securities registrar for the Securities (or another transfer agent acceptable to
the Underwriter) and DTC shall have executed and delivered the Letter of Representations, dated the Closing Time, and the Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(k) At the Closing Time, counsel for the Underwriter shall be furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
(l) If any condition specified in this Section 7 shall not have been satisfied when and as required to be satisfied or shall not have
been waived by such time, this Agreement
- 25 -
may be terminated by the Underwriter by notice to the Company at any time on or prior to the Closing Time. If the sale of any of the Securities provided for herein is not consummated because any
condition set forth in this Section 7 is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof, the Company will reimburse the Underwriter
through the Underwriter upon demand for all documented
out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by
the Underwriter in connection with the proposed offering of those Securities as to which such sale is not consummated;
provided
that any such
out-of-pocket
expenses incurred by the Underwriter shall be deemed to be expenses incurred by the Underwriter under clause (i) of Section 6 hereof for purposes of the proviso to such clause (i). In addition, such termination shall be subject to
Section 6 hereof, and Sections 1, 8, 9, 10 and 15 hereof shall survive any such termination and remain in full force and effect.
8.
(a) The Company and the Bank, jointly and severally, will indemnify and hold harmless the Underwriter, each person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
their respective partners, directors, officers, employees and agents and each affiliate of the Underwriter within the meaning of Rule 405 against any losses, claims, damages or liabilities, joint or several, to which the Underwriter may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any breach or violation by the Company of Section 5(o) hereof or (ii) an
untrue statement or alleged untrue statement of a material fact contained in any Issuer-Represented Free Writing Prospectus, any preliminary prospectus, the Registration Statement, the General Disclosure Package, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Underwriter for
any legal or other expenses reasonably incurred by the Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred;
provided
,
however
, that the Company and the Bank shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Issuer-Represented Free Writing
Prospectus, any preliminary prospectus, the Registration Statement, the General Disclosure Package, the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any the
Underwriter expressly for use therein. The Company, the Bank and the Underwriter hereby acknowledge and agree that the only information that any Underwriter has furnished to the Company consists solely of the information described as such in
subsection (b) below. Notwithstanding the foregoing, the indemnification provided for by the Bank in this paragraph shall be limited with respect to the Bank to the extent necessary if (a) a Governmental Entity having jurisdiction over the
Bank by written communication addressed to the Bank or its board of directors, including in connection with any examination of the Bank, informs the Bank or its board of directors that such Governmental Entity has determined that such
indemnification violates Sections 23A or 23B of the Federal Reserve Act, as amended, or another law, rule, regulation or policy applicable to the Bank or the Company, (b) a Governmental Entity notifies the Bank that this indemnification would
result in an adverse impact on the Bank’s examination ratings, (c) such indemnification would give rise to civil money penalties or other sanctions or (d) the Bank determines, upon the written advice of counsel, that payment of any
indemnification hereunder by the Bank would violate any law, rule, regulation or policy applicable
- 26 -
to the Bank or the Company. The Company and the Bank agree to notify the Underwriter immediately upon receipt of such written advisement or notice. The Underwriter agrees to cooperate with the
Company in implementing any modification required by the foregoing.
(b) The Underwriter shall, severally and not jointly, indemnify and
hold harmless the Company, its officers, directors and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any losses, claims, damages or liabilities to
which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Issuer-Represented Free Writing Prospectus, any preliminary prospectus, the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Issuer-Represented Free Writing Prospectus, preliminary prospectus, the Registration Statement, the General Disclosure Package, or the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information furnished to the Company by any the Underwriter expressly for use therein and will reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim as such expenses are incurred. The Company and the Underwriter hereby acknowledge and agree that the only such information that the Underwriter has furnished to the
Company consists solely of the following: (i) the third sentence of the paragraph under the heading “No Public Trading Market” and the paragraph under the heading “Price Stabilization, Short Positions,” in each case appearing in
the Prospectus in the section entitled “Underwriting”) and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof, but the omission so to
notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under such subsection, unless the indemnifying party has been prejudiced thereby. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party which consent shall not be unreasonably withheld, conditioned or
delayed, be counsel to the indemnifying party),
provided,
however,
if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a
conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to its and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such
- 27 -
legal defenses of such indemnified party or parties (but not to control the defense of such action as to the indemnifying party) and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate
counsel (together with local counsel), approved by the indemnifying party) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party within a reasonable time after notice of commencement of the action,
in each of which cases the fees and expenses of one counsel for the indemnified party or parties (in addition to local counsel) shall be at the expense of the indemnifying party. The indemnifying party under this Section 8 shall not be liable
for any settlement of any proceedings effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this Section 8(c), the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into in good faith by the
indemnifying party more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request (other than those fees and expenses that are being contested in good faith) prior to the date of such settlement. The
indemnifying party under this Section 8 shall not be liable for any settlement or compromise of or agreed judgment in any proceedings effected or agreed to without its prior express written consent, but if any such proceeding is settled or
compromised, or an agreed judgment is entered into, with such consent or if there be a final judgment (other than an agreed judgment) rendered in favor of for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against
any loss, claim, damage, liability or expense by reason of such settlement, compromise, agreed judgment or other judgment. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party
- 28 -
as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of
the Company on the one hand and the Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriter on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Bank and the Underwriter agree that it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by
pro
rata
allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each officer and employee of the Underwriter and each person, if any, who controls the Underwriter within the meaning of the 1933 Act and the 1934 Act shall have the same rights to contribution as the Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the 1933 Act and the 1934 Act shall have the same rights to contribution as the
Company. Notwithstanding the foregoing, the contribution obligation of the Bank in this paragraph shall be limited with respect to the Bank to the extent necessary if (a) a Governmental Entity having jurisdiction over the Bank by written
communication addressed to the Bank or its board of directors, including in connection with any examination of the Bank, informs the Bank or its board of directors that such Governmental Entity has determined that such contribution violates Sections
23A or 23B of the Federal Reserve Act, as amended, or another law, rule, regulation or policy applicable to the Bank or the Company, (b) a Governmental Entity notifies the Bank that any contribution would result in an adverse impact on the
Bank’s examination ratings, (c) such contribution would give rise to
- 29 -
civil money penalties or other sanctions or (d) the Bank determines, upon the written advice of counsel, that any contribution made by the Bank hereunder would violate any law, rule,
regulation or policy applicable to the Bank or the Company.
(e) The obligations of the Company and the Bank under this Section 8
shall be in addition to any liability which the Company and the Bank may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls (within the meaning of the 1933 Act) the Underwriter, or any of the
respective partners, directors, officers and employees of the Underwriter or any such controlling person. The obligations of the Underwriter under this Section 8 shall be in addition to any liability which the Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls (within the meaning of the 1933 Act) the Company or any of the directors and officers of the Company or any such controlling person.
(f) The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
9. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriter, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of the Underwriter or any controlling person of the Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.
10. (a) The Underwriter may terminate this Agreement, by notice to the Company, at any time on or prior to the Closing Time if, since the
time of execution of this Agreement or, in the case of (i) below, since the date of the most recent balance sheets included in the Financial Statements, there has occurred, (i) any Material Adverse Effect, (ii) a suspension or
material limitation in trading in the Company’s securities on NASDAQ, (iii) a general moratorium on commercial banking activities declared by either Federal, New York or Louisiana authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, including without limitation, as a result of terrorist activities occurring after the date hereof, if the effect of any such
event specified in clause (iv) or (v), in the reasonable judgment of the Underwriter is so material and adverse so as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered
at the Closing Time on the terms and in the manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this
Section 10, such termination shall be without liability of any party to any other party except as provided in Section 6 hereof and provided further that Sections 1, 8, 9, 10 and 15 hereof shall survive such termination and remain in full
force and effect.
- 30 -
11. All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriter shall be delivered or sent by mail or overnight delivery service or facsimile transmission to the Underwriter at Sandler O’Neill + Partners, L.P., 1251 Avenue of the Americas, 6
th
Floor, New York, New York 10020, Attention: General Counsel, with a copy to Kilpatrick Townsend & Stockton LLP, 607 14
th
Street, NW, Suite 900, N.W., Washington, D.C. 20005, Attention:
Christina M. Gattuso, Esq.; and if to the Company shall be delivered or sent by mail or facsimile to Investar Holding Corporation, 7244 Perkins Road, Baton Rouge, Louisiana 70808, Attention: Christopher Hufft, with copies to Fenimore, Kay,
Harrison & Ford, LLP, 812 San Antonio Street, Suite 600, Austin, Texas 78701, Attention: Geoffrey S. Kay, Esq. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter, the Company and, to the extent provided in
Sections 8 and 9 hereof, the officers and directors of the Company and each person who controls the Company or the Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any of the Securities from the Underwriter shall be deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the
Commission’s office in Washington, D.C. is open for business.
14. The Company acknowledges and agrees that (i) the purchase and
sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an
arm’s-length
commercial
transaction between the Company, on the one hand, and the Underwriter, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this
Agreement, (ii) in connection with the offering contemplated hereby and the process leading to such transaction the Underwriter is and has been acting solely as principal and is not the agent or fiduciary of the Company, its subsidiaries or the
Company’s shareholders, creditors, employees or any other third party, (iii) the Underwriter has not assumed nor will it assume an advisory or fiduciary responsibility in favor of the Company or any of its subsidiaries with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries on any other matters) and the Underwriter does not have any obligation
to the Company or any of its subsidiaries with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Underwriter and its respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company or any of its subsidiaries and the Underwriter does not have any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or
agency relationship, (v) the Company and its subsidiaries waive, to the fullest extent permitted by law, any claims the Company may have against the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the
Underwriter shall not have any liability (whether direct or indirect) to the Company or any of its subsidiaries in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company,
including shareholders, employees or creditors of the Company, and (vi) the Underwriter has not provided any legal, accounting, regulatory or
- 31 -
tax advice with respect to the offering contemplated hereby and the Company and the Bank consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
15. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION
5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
16. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Any facsimile or electronically transmitted copies hereof or signatures hereon shall, for all purposes,
be deemed originals.
17. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
18. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
19. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Bank and the
Underwriter, or any of them, with respect to the subject matter hereof.
- 32 -
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement among the Underwriter, the Bank and the Company.
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Very truly yours,
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INVESTAR HOLDING CORPORATION
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By:
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/s/ John J. D’Angelo
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John J. D’Angelo, President and Chief Executive Officer
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INVESTAR BANK
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By:
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/s/ John J. D’Angelo
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John J. D’Angelo, President and Chief Executive Officer
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Accepted as of the date hereof:
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SANDLER O’NEILL + PARTNERS, L.P.
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For Itself
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By:
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Sandler O’Neill & Partners Corp.,
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the sole general partner
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By:
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Name:
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Title:
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[Signature Page to Underwriting Agreement]
Schedule I
Pricing Term Sheet
I-1
Schedule II
Investor Presentation filed with the Commission on March 16, 2017 pursuant to Rule 433 (Registration Statement
No. 333-215238)
Pricing Term Sheet filed with the Commission on March 21, 2017 pursuant to Rule 433
(Registration Statement
No. 333-215238)
Schedule III
List of Subsidiaries
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Banking Subsidiary
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Jurisdiction of
Organization
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Investar Bank
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Louisiana
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Nonbanking Subsidiary
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Jurisdiction of
Organization
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First Community (LA) Statutory Trust I
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Delaware
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Investar Acquisition Company
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Louisiana
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Exhibit 4.1
INVESTAR HOLDING CORPORATION
as
Issuer
and
WILMINGTON
TRUST, NATIONAL ASSOCIATION
as Trustee
INDENTURE
Dated as of
March 24, 2017
SUBORDINATED DEBT SECURITIES
INVESTAR HOLDING CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
|
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Trust Indenture Act Section
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Indenture Section
|
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§310(a)(1)
|
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609
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|
(a)(2)
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|
609
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(a)(3)
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Not Applicable
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|
(a)(4)
|
|
Not Applicable
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(b)
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608; 610
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|
§311(a)
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613
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(b)
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613
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§312(a)
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701; 702
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(b)
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702
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(c)
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702
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§313(a)
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703
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(b)
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703
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(c)
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703
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(d)
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703
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§314(a)
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704
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(a)(4)
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1004
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(b)
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Not Applicable
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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§315(a)
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601; 603
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(b)
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602
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(c)
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601
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(d)
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601
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(e)
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514
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§316(a)
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101
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(a)(1)(A)
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502; 512
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(a)(1)(B)
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513
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(a)(2)
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Not Applicable
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(b)
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508
|
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(c)
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104
|
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§317(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§318(a)
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107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
i
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 1.01 Definitions
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1
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Section 1.02 Compliance Certificates and Opinions
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8
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Section 1.03 Form of Documents Delivered to Trustee
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9
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Section 1.04 Acts of Holders; Record Dates
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9
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Section 1.05 Notices, Etc., to Trustee and the Company
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10
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Section 1.06 Notice to Holders; Waiver
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11
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Section 1.07 Conflict with Trust Indenture Act
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11
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Section 1.08 Effect of Headings and Table of Contents
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11
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Section 1.09 Successors and Assigns
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12
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Section 1.10 Separability Clause
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12
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Section 1.11 Benefits of Indenture
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12
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Section 1.12 Governing Law
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12
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Section 1.13 Legal Holidays
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12
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Section 1.14 Language of Notices, Etc
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12
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Section 1.15 Interest Limitation
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12
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Section 1.16 No Personal Liability of Officers, Directors, Employees or Shareholders
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13
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Section 1.17 Applicability of Depository
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13
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Section 1.18 Force Majeure
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14
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Section 1.19 U.S.A. Patriot Act
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14
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Section 1.20 Submission to Jurisdiction
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14
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ARTICLE II SECURITY FORMS
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14
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Section 2.01 Forms Generally
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14
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Section 2.02 Form of Face of Security
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15
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Section 2.03 Form of Reverse of Security
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18
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Section 2.04 Global Securities
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22
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Section 2.05 Form of Trustee’s Certificate and Authorization
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23
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ARTICLE III THE SECURITIES
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24
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Section 3.01 Amount Unlimited; Issuable in Series
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24
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Section 3.02 Denominations
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27
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Section 3.03 Execution, Authentication, Delivery and Dating
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27
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Section 3.04 Temporary Securities
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29
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Section 3.05 Registration, Registration of Transfer and Exchange
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29
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Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
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31
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Section 3.07 Payment of Interest; Interest Rights Preserved
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32
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Section 3.08 Persons Deemed Owners
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33
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Section 3.09 Cancellation
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33
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Section 3.10 Computation of Interest
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34
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Section 3.11 CUSIP Numbers
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34
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ii
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ARTICLE IV SATISFACTION AND DISCHARGE
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34
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Section 4.01 Satisfaction and Discharge of Indenture
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34
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Section 4.02 Application of Trust Money
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35
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ARTICLE V REMEDIES
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36
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Section 5.01 Events of Default
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36
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Section 5.02 Acceleration of Maturity; Rescission and Annulment
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36
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Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee
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37
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Section 5.04 Trustee May File Proofs of Claim
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38
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Section 5.05 Trustee May Enforce Claims Without Possession of Securities
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39
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Section 5.06 Application of Money Collected
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39
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Section 5.07 Limitation on Suits
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39
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Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest
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40
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Section 5.09 Restoration of Rights and Remedies
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40
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Section 5.10 Rights and Remedies Cumulative
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40
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Section 5.11 Delay or Omission Not Waiver
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40
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Section 5.12 Control by Holders
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41
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Section 5.13 Waiver of Past Defaults
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41
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Section 5.14 Undertaking for Costs
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41
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|
ARTICLE VI THE TRUSTEE
|
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42
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Section 6.01 Certain Duties and Responsibilities
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42
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Section 6.02 Notice of Defaults
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43
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Section 6.03 Certain Rights of Trustee
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43
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|
Section 6.04 Not Responsible for Recitals or Issuance of Securities
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45
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Section 6.05 May Hold Securities
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45
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Section 6.06 Money Held in Trust
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46
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Section 6.07 Compensation and Reimbursement
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46
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Section 6.08 Disqualification; Conflicting Interests
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47
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Section 6.09 Corporate Trustee Required; Eligibility
|
|
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47
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Section 6.10 Resignation and Removal; Appointment of Successor
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47
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Section 6.11 Acceptance of Appointment by Successor
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|
|
48
|
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|
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
|
|
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49
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Section 6.13 Preferential Collection of Claims Against the Company
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50
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Section 6.14 Appointment of Authenticating Agent
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50
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ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
|
|
|
51
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|
Section 7.01 The Company to Furnish Trustee Names and Addresses of Holders
|
|
|
51
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|
|
Section 7.02 Preservation of Information; Communications to Holders
|
|
|
51
|
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|
Section 7.03 Reports by Trustee
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|
|
52
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|
Section 7.04 Reports by the Company
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52
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|
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|
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
53
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|
Section 8.01 The Company May Consolidate, Etc., Only on Certain Terms
|
|
|
53
|
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|
Section 8.02 Successor Substituted
|
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|
53
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|
iii
|
|
|
|
|
|
|
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|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
|
|
53
|
|
|
Section 9.01 Supplemental Indentures Without Consent of Holders
|
|
|
53
|
|
|
Section 9.02 Supplemental Indentures with Consent of Holders
|
|
|
54
|
|
|
Section 9.03 Execution of Supplemental Indentures
|
|
|
55
|
|
|
Section 9.04 Effect of Supplemental Indentures
|
|
|
55
|
|
|
Section 9.05 Conformity with Trust Indenture Act
|
|
|
56
|
|
|
Section 9.06 Reference in Securities to Supplemental Indentures
|
|
|
56
|
|
|
|
|
|
ARTICLE X COVENANTS
|
|
|
56
|
|
|
Section 10.01 Payment of Principal, Premium and Interest
|
|
|
56
|
|
|
Section 10.02 Maintenance of Office or Agency
|
|
|
56
|
|
|
Section 10.03 Money for Securities Payments to Be Held in Trust
|
|
|
57
|
|
|
Section 10.04 Statement by Officers as to Default
|
|
|
58
|
|
|
Section 10.05 Waiver of Certain Covenants
|
|
|
58
|
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
|
|
59
|
|
|
Section 11.01 Applicability of Article
|
|
|
59
|
|
|
Section 11.02 Election to Redeem; Notice to Trustee
|
|
|
59
|
|
|
Section 11.03 Selection by Trustee of Securities to be Redeemed
|
|
|
59
|
|
|
Section 11.04 Notice of Redemption
|
|
|
60
|
|
|
Section 11.05 Deposit of Redemption Price
|
|
|
60
|
|
|
Section 11.06 Securities Payable on Redemption Date
|
|
|
60
|
|
|
Section 11.07 Securities Redeemed in Part
|
|
|
61
|
|
|
|
|
|
ARTICLE XII SINKING FUNDS
|
|
|
61
|
|
|
Section 12.01 Applicability of Article
|
|
|
61
|
|
|
Section 12.02 Satisfaction of Sinking Fund Payments with Securities
|
|
|
61
|
|
|
Section 12.03 Redemption of Securities for Sinking Fund
|
|
|
62
|
|
|
|
|
|
ARTICLE XIII DEFEASANCE
|
|
|
62
|
|
|
Section 13.01 Applicability of Article
|
|
|
62
|
|
|
Section 13.02 Legal Defeasance
|
|
|
62
|
|
|
Section 13.03 Covenant Defeasance
|
|
|
64
|
|
|
Section 13.04 Application by Trustee of Funds Deposited for Payment of Securities
|
|
|
65
|
|
|
Section 13.05 Repayment to the Company
|
|
|
66
|
|
|
Section 13.06 Reinstatement
|
|
|
66
|
|
|
|
|
|
ARTICLE XIV SUBORDINATION OF SECURITIES
|
|
|
66
|
|
|
Section 14.01 Securities Subordinated to Senior Debt
|
|
|
66
|
|
iv
INDENTURE
INDENTURE dated as of March 24, 2017, between Investar Holding Corporation, a Louisiana corporation (the “Company”), having its
principal office at 7244 Perkins Road, Baton Rouge, Louisiana 70808, and Wilmington Trust, National Association, a national banking association (the “Trustee”), having a corporate trust office at 1100 North Market Street, Wilmington,
Delaware 19890.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
WITNESSETH:
NOW, THEREFORE, THIS INDENTURE
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly, or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States, and, except as otherwise herein expressly provided, the term “
generally
accepted
accounting
principles
” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation;
1
(4) 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;
(5) the words “
Article
” and “
Section
” refer to an Article and Section, respectively, of this Indenture; and
(6) “or” is not exclusive.
“
Act,
” when used with respect to any Holder, has the meaning specified in Section 1.04
“
Affiliate
” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any specified Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “
controlling
” and “
controlled
” have meanings correlative to the foregoing.
“
Authenticating
Agent
” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of
the Trustee to authenticate Securities of one or more series.
“
Authorized
Newspaper
” means a newspaper, in the
English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
“
Bankruptcy
Law
” means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors or the protection of creditors.
“
Board
of
Directors
” means the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect thereof.
“
Board
Resolution
” means a copy of a resolution certified by the Corporate Secretary of the Company, the principal
financial officer of the Company or any other authorized officer of the Company or a Person duly authorized by any of them, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
“
Business
Day
” when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or particular location are authorized or obligated by law or executive order to close.
2
“
Commission
” means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934 or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
“
Company
” means the Person named as the “
Company
” in the first
paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“
Company
Request
” or “
Company
Order
” means a written request or order signed in the name of
the Company by the Chairman of the Board, the Vice Chairman, the President or a Vice President of the Company, and by the Treasurer or Secretary of the Company, and delivered to the Trustee.
“
Corporate
Trust
Office
” means the principal office of the Trustee at which at any particular time its
corporate trust business related to this Indenture shall be principally administered, which at the date hereof is 1100 North Market Street, Wilmington, Delaware 19890, Attention: Investar Holding Corporation Administrator or such other address as
the Trustee may designate from time to time by notice to the Holders and 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
Holders and the Company).
“
corporation
” includes corporations, associations, partnerships (general or limited), limited
liability companies, joint-stock companies and business trusts.
“
covenant
defeasance
” has the meaning specified
in Section 13.03.
“
Custodian
” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
“
Debt
” means any debt for money borrowed.
“
Default
” means, with respect to a series of Securities, 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.
“
Defaulted
Interest
” has the meaning
specified in Section 3.07.
“
defeasance
” has the meaning specified in Section 13.02.
“
Definitive
Security
” means a Security other than a Global Security or a temporary Security.
“
Depository
” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange
3
Act that is designated to act as Depository for such Securities as contemplated by Section 3.01, until a successor Depository shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter shall mean or include each Person which is then a Depository hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.
“
Dollar
” or “
$
” means the coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
“
Event
of
Default
” has the meaning specified in
Section 5.01.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended from time to time, and
any statute successor thereto.
“
Fiscal
Year
” means, with respect to the Company, each
12-month
period beginning on January 1 and ending on December 31;
provided
,
however
, that, with respect to a series of Securities, the first fiscal year will begin on the date such series of
Securities is authenticated and delivered under this Indenture. The Company will notify the Trustee in writing if its fiscal year changes.
“
Global
Security
” means a Security in global form that evidences all or part of the Securities of any series and is
registered in the name of the Depository for such Securities or a nominee thereof.
“
Holder
” means a Person in whose name
a Security is registered in the Security Register.
“
Indenture
” means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by
Section 3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
“
Interest,
” when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable after Maturity.
“
Interest
Payment
Date,
” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
4
“
Maturity,
” when used with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Notice
of
Default
” means a written notice of the kind specified in Section 5.01(3).
“
Officer
” means the Chairman, Vice Chairman, Chief Executive Officer, the President, Chief Financial Officer, any Vice
President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
“
Officers’
Certificate
” means a certificate signed by two Officers. One of the Officers signing an Officers’ Certificate given pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Company.
“
Opinion
of
Counsel
” means a written opinion of legal counsel, who may be an employee of or counsel for
the Company, which opinion shall comply with the provisions of Section 1.02 and Section 1.03. Such counsel shall be reasonably acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
“
Original
Issue
Discount
Security
” means any Security which provides for an amount less than the stated
principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“
Outstanding
”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore previously canceled by the Trustee or delivered to
the Trustee for cancellation pursuant to a Company Order;
(ii) Securities for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided,
however
, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof that such Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(iv) Securities, except to the extent provided in Section 13.02 and Section 13.03, with
respect to which the Company has effected defeasance or covenant defeasance as provided in Article XIII;
5
provided,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof on such date pursuant to Section 5.02, (B) the principal amount of a Security denominated in one or more
currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such currencies or currency units, determined in the manner provided as contemplated by Section 3.01 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent (as so determined) on the date of original issuance of such Security, of the amount determined as provided in Clause (A) above) of such
Security, and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in Clause
(C) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“
Paying
Agent
” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“
Periodic
Offering
” means an offering of Securities of a series from time to time, the specific terms of which
Securities, including, without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Stated Maturity or Stated Maturities thereof, the original issue date or dates thereof, the
redemption provisions, if any, with respect thereto, and any other terms specified as contemplated by Section 3.01 with respect thereto, are to be determined by the Company upon the issuance of such Securities.
“
Person
” means any individual, corporation, partnership, joint venture, 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 the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified and as contemplated by Section 3.01 and Section 11.02.
“
Predecessor
Security
” of any particular Security means every previous Security evidencing all or a portion of the
same Debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same Debt as the mutilated, destroyed, lost or stolen Security.
“
Redemption
Date
”, when
used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
6
“
Redemption
Price
”, when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“
Regular
Record
Date
”
for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“
Responsible
Officer
” means any officer of the Trustee in its Corporate Trust Office and also means, 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 a particular subject, in each case, who has direct responsibility for the administration of
this Indenture.
“
Securities
” has the meaning stated in the first recital of this Indenture and more particularly means
any Securities authenticated and delivered under this Indenture.
“
Security
Register
” and “
Security
Registrar
” have the respective meanings specified in Section 3.05.
“
Senior
Debt
” ” means:
(i) the principal and any premium or interest for money borrowed or purchased by the Company (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such
claim for post petition interest is allowed in such proceedings); (ii) the principal and any premium or interest for money borrowed or purchased by another Person and guaranteed by the Company; (iii) any deferred obligation for the payment
of the purchase price of property or assets evidenced by a note or similar agreement; (iv) an obligation arising from direct credit substitutes; and (v) any obligation associated with derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements; in each case, whether outstanding on the date this Subordinated Indenture becomes effective, or created, assumed or incurred after that date;
provided
,
however
,
that Senior Debt excludes (a) any indebtedness, obligation or liability referred to in clauses (i) through (v) above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly
provided that the indebtedness, obligation or liability is junior to, or ranks equally in right of payment with, the Securities; and (b) the junior subordinated debentures issued to First Community (LA) Statutory Trust I and any guarantee of
the Company in respect of the equity securities or other securities of First Community (LA) Statutory Trust I.
“
Special
Record
Date
” for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 3.07.
“
Stated
Maturity,
” when used with respect to the principal of any Security or any installment of principal thereof or
interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“
Subsidiary
” means, with respect to any Person, any entity of which more than 50% of the total voting power of the equity
interests entitled, without regard to the occurrence of any contingency, to vote in the election of directors, managers or trustees thereof; or any partnership
7
of which more than 50% of the partners’ equity interests, considering all partners’ equity interests as a single class, is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or combination thereof.
“
Trust
Indenture
Act
” means the Trust Indenture Act of 1939, as so amended.
“
Trustee
” means the Person named as the
“Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean each Trustee with respect to Securities of that series.
“
U.S.
Government
Obligations
” means securities which are (i) direct obligations of the United States for
the payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States, each of which are not callable or redeemable at the option of the issuer thereof.
“
Vice
President
”, when used with respect to the Company, means any vice president of the Company, or when used with
respect to the Trustee, means any vice president of the Trustee.
Section 1.02
Compliance
Certificates
and
Opinions
.
Upon any application or request by the Company to the Trustee to take or refrain from taking any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate in form satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with, and an Opinion of Counsel in form satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each such
certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by officers of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every Officers’ Certificate or Opinion of Counsel (except for certificates
provided for in Section 10.04) shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(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 each such individual, 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, in the opinion of each such individual, such condition or covenant has been complied with.
8
Section 1.03
Form
of
Documents
Delivered
to
Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it
is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04
Acts
of
Holders;
Record
Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically or by means of a facsimile or an electronic
transmission,
provided
that such electronic transmission is transmitted through the facilities of a Depository) by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered (either physically or by means of a facsimile or an electronic transmission,
provided
that such electronic transmission is transmitted through the facilities of a
Depository) to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the
foregoing, a Holder, including a Depository that is a Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action
9
provided in this Indenture to be made, given or taken by Holders, and a Depository that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in
any such Global Security.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or
writing or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The
ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Person’s holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other action of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.
Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the
purpose of determining the Holders of Outstanding Securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken
by Holders of Securities of such series, but the Company shall have no obligation to do so. With regard to any record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action, whether or not such Holders remain Holders after such record date.
Section 1.05
Notices,
Etc.,
to
Trustee
and
the
Company
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made in writing and actually received by the Trustee at its office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: Investar Holding Corporation Administrator, or at any other address previously
furnished in writing by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company, addressed to it at 7244 Perkins Road, Baton Rouge, Louisiana 70808, to the attention of the Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
10
Section 1.06
Notice
to
Holders;
Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid (if international mail, by air mail), to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such
notice.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice
of any event (including any notice of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depository for such Security (or its designee) pursuant to the standing
instructions from the Depository (or its designee), including by electronic mail in accordance with accepted practices at the Depository. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Company shall constitute a sufficient notification for every purpose hereunder.
Section 1.07
Conflict
with
Trust
Indenture
Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
Section 1.08
Effect
of
Headings
and
Table
of
Contents
.
The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
11
Section 1.09
Successors
and
Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10
Separability
Clause
.
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.
Section 1.11
Benefits
of
Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12
Governing
Law
.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 1.13
Legal
Holidays
.
In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security or coupon other than a provision in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
Section 1.14
Language
of
Notices,
Etc
.
Any request, demand, authorization, direction, notice, consent, waiver or Act 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.
Section 1.15
Interest
Limitation
.
It is the intention of the Company to conform strictly to all applicable usury laws and any subsequent
revisions, repeals or judicial interpretations thereof. Accordingly, if the transactions contemplated hereby would be usurious under any applicable law then, in that event,
12
notwithstanding anything to the contrary in the Securities or this Indenture, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under applicable law
with respect to a Security shall under no circumstances exceed the maximum amount allowed by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall have been paid
in full, refunded to the Company), to the extent permitted by applicable law; and (ii) in the event that the maturity of any Security is accelerated or in the event of any redemption of such Security, then such consideration that constitutes
interest under applicable law may never include more than the maximum amount allowed by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall be paid in full,
refunded to the Company), to the extent permitted by applicable law. All calculations (as determined by the Company and communicated to the Trustee and the Paying Agent in a Company Order) made to compute the rate of interest with respect to a
Security for the purpose of determining whether such rate exceeds the maximum amount allowed by applicable law shall be made, to the extent permitted by such applicable law, by allocating and spreading during the period of the full stated term of
such Security all interest any time contracted for, taken, reserved, charged or received by such Holder or by the Trustee on behalf of any such Holder in connection therewith so that the amount or rate of interest charged for any and all periods of
time during the term of the Security does not exceed the maximum amount or rate of interest allowed to be charged by law during the relevant period of time. Notwithstanding any of the foregoing, if at any time applicable laws shall be changed so as
to permit a higher rate or amount of interest to be charged than that permitted prior to such change, then unless prohibited by law, references in this Indenture or any Security to “applicable law” when used in the context of determining
the maximum interest or rate of interest that can be charged shall be deemed to refer to such applicable law as so amended to allow the greater amount or rate of interest.
The right to accelerate maturity of any Security does not include the right to accelerate any interest which has not otherwise accrued to the
date of such acceleration, provided, however, that the foregoing shall not prohibit the continuing accrual after acceleration of interest in accordance with the terms of the Indenture and such Security.
Section 1.16
No
Personal
Liability
of
Officers,
Directors,
Employees
or
Shareholders
.
Obligations of the Company under this Indenture and the Securities hereunder are payable only out of cash flow and
assets of the Company. Each Holder of a Security by its acceptance thereof, will be deemed to have agreed in this Indenture that no director, officer, employee, or shareholder, as such, of the Company, the Trustee, or any Affiliate of any of the
foregoing entities shall have any personal liability in respect of the obligations of the Company under this Indenture or such Securities by reason of his, her or its status. The agreements set forth in this Section are part of the consideration for
the issuance of the Securities.
Section 1.17
Applicability
of
Depository
.
Notwithstanding any other provision of this Indenture, so long as a series of Securities is a Global Security, the parties hereto will be
bound at all times by the applicable procedures of the Depository with respect to such series.
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Section 1.18
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 1.19
U.S.A.
Patriot
Act
.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. 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.
Section 1.20
Submission
to
Jurisdiction
.
The Company hereby irrevocably submits to the
non-exclusive
jurisdiction of any New York state or
federal court sitting in The City of New York in any action or proceeding arising out of or relating to the Indenture and the Securities of any series, and the Company hereby irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York state or federal court. The Company hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
ARTICLE II
SECURITY FORMS
Section 2.01
Forms
Generally
.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable laws or the rules of any securities exchange or automated quotation system on which the Securities of such
series may be listed or traded or of any Depository therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized officer or other authorized Person on behalf of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
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The Definitive Securities shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
Form
of
Face
of
Security
.
[Insert any legend required by the United States Internal Revenue Code and the regulations thereunder.]
[If a Global Security, as required by Section 2.04 of this Indenture, insert
—
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU
OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If applicable,
insert
—
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
INVESTAR HOLDING CORPORATION
[TITLE OF SECURITY]
INVESTAR HOLDING CORPORATION, a Louisiana corporation (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or
registered assigns,
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the principal sum of United States Dollars [state other currency] on
, 20 , [if the Security is to bear interest prior to Maturity, insert—, and to pay interest thereon from
, 20 , or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on and
in each year, commencing , at the rate of % per annum, until the principal hereof is paid or made available for payment [if applicable, insert—, and
at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest]. [If applicable, insert — (The amount of interest payable for any period shall be computed on the basis of
twelve
30-day
months and a
360-day
year. The amount of interest payable for any partial period shall be computed on the basis of a
360-day
year of twelve
30-day
months and the days elapsed in any partial month. In the event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on
the date the payment was originally payable. A “Business Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in
or any applicable Place of Payment are authorized or required by law, regulation or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee is closed for business.)]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice of which
shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities of this series may be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in such Indenture].
[If the Security is not to bear interest prior to Maturity, insert—(The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of % per annum, which shall accrue
from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on
demand.)].
[If a Global Security, insert—(Payment of the principal of [(and premium, if any)] and [if applicable, insert—any
such] interest on this Security will be made by transfer of immediately available funds to a bank account designated by the Holder in such coin or currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts [state other currency].]
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[If a Definitive Security, insert—(Payment of the principal of [(and premium, if any)] and
[if applicable, insert—any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in
, [in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and
private debts] [state other currency] [or subject to any laws or regulations applicable thereto and to the right of the Company (as provided in the Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of
in and
in , or at such other offices or agencies as the Company may designate, by [United States Dollar] [state other currency] check
drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in (so long as the applicable
Paying Agent has received proper transfer instructions in writing at least 15 days prior to the payment date)] [if applicable, insert—;
provided,
however
, that payment of interest may be made at the option of the Company through
the Paying Agent by [United States Dollar] [state other currency] check mailed to the addresses of the Persons entitled thereto as such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar] [state other
currency] account maintained by the payee with a bank in (so long as the applicable Paying Agent has received proper transfer
instructions in writing by the Record Date prior to the applicable Interest Payment Date)].]
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
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INVESTAR HOLDING CORPORATION
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By:
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Name:
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Title:
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Wilmington Trust, National Association,
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As Trustee
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By:
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Authorized Signatory
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Dated:
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Section 2.03
Form
of
Reverse
of
Security
.
This Security is one of a duly authorized issue of securities of the Company (the “Securities”), issued and to be issued in one or
more series under an Indenture dated as of [ ] (the “Indenture”), between the Company and
, as Trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of the series designated on the face hereof [if applicable, insert—, limited in aggregate principal amount to U.S.
$ ].
[If applicable, insert—The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days’ notice by mail, [if applicable, insert—(1) on in any year commencing with the year 20 and ending with the year 20 through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ] at any time [if applicable, insert—on or after
, 20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert—on or
before , 20 , %, and if redeemed] during the
12-month
period
beginning of the years indicated,
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Year
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Redemption Price
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Year
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Redemption Price
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and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert—(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
18
[If applicable, insert—The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days’ notice by mail, (1) on in any year commencing with the year 20
and ending with the year 20 through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [if applicable, insert—on or after , 20 , as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the
12-month
period beginning of the years indicated,
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Year
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Redemption Price for
Redemption Through Operation
of the Sinking Fund
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Redemption Price for Redemption
Otherwise Than Through Operation of
the Sinking Fund
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and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any
such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert—The sinking fund for this series provides for the redemption on in each year beginning with the year
20 and ending with the year 20 of [if applicable,—not less than $ (“mandatory sinking fund”) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable,—mandatory] sinking fund payments may
be credited against subsequent [if applicable,—mandatory] sinking fund payments otherwise required to be made [if applicable,—in the inverse order in which they become due].]
[If the Security is subject to redemption in part of any kind, insert—In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert—The Securities of this series are not redeemable prior to Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insert—If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert—If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect
19
provided in the Indenture. Such amount shall be equal to—insert formula for determining the amount. Upon payment (1) of the amount of principal so declared due and payable, and
(2) of interest on any overdue principal and overdue interest, all of the Company’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of not less than the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series to be affected (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities of all affected series (voting as
one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture permits, with certain exceptions as therein provided, the Holders of a majority in
principal amount of Securities of any series then Outstanding to waive past defaults under the Indenture with respect to such series and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default
as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or [any premium or] interest hereon on or after the respective due dates expressed herein.
No reference herein to the
Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder, alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and [any premium and] interest on
this Security at the times, place(s) and rate, and in the coin or currency, herein prescribed, except for Section 1.15 of the Indenture (which limits interest to the maximum amount permissible by law), the provisions of which are incorporated
herein by reference.
[If a Global Security, insert—This Global Security or portion hereof may not be exchanged for Definitive
Securities of this series except in the limited circumstances provided in the Indenture.
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The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insert—As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this
Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [if applicable, insert — any place where the principal of and any premium and interest on
this Security are payable] [if applicable, insert— ] [, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
in and
in or at such other offices or agencies as the Company may designate]], duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
The Securities of
this series are issuable only in registered form without coupons in minimum denominations of U.S. $ [state other currency] and any integral multiple of
[ ] in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service
charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security is subordinated in right of payment to Senior Debt, to the extent provided in the Indenture.
Obligations of the Company under the Indenture and the Securities thereunder, including this Security, are payable only out of cash flow and
assets of the Company. Each Holder of a Security by its acceptance hereof, will be deemed to have agreed in the Indenture that no director, officer, employee, or shareholder, as such, of the Company, the Trustee, or any Affiliate of any of the
foregoing entities shall have any personal liability in respect of the obligations of the Company under the Indenture or such Securities by reason of his, her or its status.
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The Indenture contains provisions that relieve the Company from the obligation to comply with
certain restrictive covenants in the Indenture and for satisfaction and discharge at any time of the entire indebtedness upon compliance by the Company with certain conditions set forth in the Indenture.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[If a Definitive Security, insert as a separate page—
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto (Please Print or Typewrite Name and Address of Assignee) the within instrument of INVESTAR HOLDING CORPORATION, and does
hereby irrevocably constitute and appoint Attorney to transfer said instrument on the books of the within-named Company, with
full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
Signature Guarantee:
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The
signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.]
Section 2.04
Global
Securities
.
Every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
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TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in the form of one or more Global Securities, as contemplated by Section 3.01,
then, notwithstanding Clause (9) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased, as the case may be, to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in a Company Order. Subject to the provisions of Section 3.03, Section 3.04 and Section 3.05, the Trustee shall deliver and redeliver any Global Security in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect to endorsement or delivery or redelivery of a Global Security shall be in a Company Order (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.03 shall
apply to any Security represented by a Global Security if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply with Section 1.02
and need not be accompanied by an Opinion of Counsel) with regard to the reduction or increase, as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of
Section 3.03.
Section 2.05
Form
of
Trustee
’
s
Certificate
and
Authorization
.
The Trustee’s certificates of authentication shall be in substantially 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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Wilmington Trust, National Association,
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As Trustee
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By:
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Authorized Signatory
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Dated:
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ARTICLE III
THE SECURITIES
Section 3.01
Amount
Unlimited;
Issuable
in
Series
.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution (and, subject to Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers’ Certificate or Company Order setting forth, or determining
the manner of, such establishment) or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the form and title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities of the 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 Section 3.04, Section 3.05, Section 3.06,
Section 9.06, or Section 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) [Intentionally Omitted]
(4) the date or dates on which the Securities will be issued and on which the principal of, and premium, if any, on the Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable) at which the Securities
of the series shall bear interest, if any, or the method of determination thereof, the date or dates from which such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where, subject to the
provisions of Section 10.02, the principal of and any premium and interest on Securities of the series shall be payable, 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;
(7)
the period or periods, if any, within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company or otherwise, if the Company is to have
that option;
(8) the obligation, if any, and the option, if any, of the Company to redeem, purchase or repay Securities of the series
pursuant to any sinking fund or analogous provisions or
24
upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than
minimum denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(10) whether payment of principal of and premium, if any, and interest, if any, on the Securities of the series shall be without deduction for
taxes, assessments or governmental charges paid by Holders of the series;
(11) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of the series shall be denominated, payable, redeemable or purchasable 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;
(12) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(13) if the principal of or any premium or interest on any Securities of
the series is 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, currencies or currency units in
which payment of the principal of and any premium and 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;
(14) the right, if any, of the Company to defer payments of interest by extending the interest payment periods and specify the duration of
such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional interest on amounts deferred shall be payable;
(15) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(16) if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities (and whether in temporary or permanent global form) and, in such case, the Depository or Depositaries for such Global Security or Global Securities and any circumstances other than those set forth in Section 3.05 in which any such
Global Security may be transferred to, and registered and exchanged for Securities registered in the name of, a Person other than the Depository for such Global Security or a nominee thereof and in which any such transfer may be registered;
25
(17) any deletions from, modifications of or additions to the Events of Default set forth in
Section 5.01 or the covenants of the Company set forth in Article X pertaining to the Securities of the series;
(18) if and the
terms and conditions upon which any Securities of the series may be converted into or exchanged for securities, which may include, without limitation, capital stock, of any class or series of the Company or any other issuer;
(19) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to
an index, including, but not limited to an index based on a currency or currencies other than that in which the Securities of that series are payable, or any other type of index, the manner in which such amounts shall be determined;
(20) if other than as provided in Section 13.02 and Section 13.03, the terms and conditions upon which and the manner in which such
series of Securities may be defeased or discharged;
(21) if other than the Trustee, the identity of any other trustee, the Security
Registrar and any Paying Agent;
(22) any restrictions or other provisions with respect to the transfer or exchange of the Securities; and
(23) any other terms of the Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.01(3)).
All Securities of any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the Board Resolution or Officers’ Certificate referred to above or in any such indenture supplemental hereto.
Any such Board Resolution or Officers’ Certificate referred to above with respect to Securities of any series filed with the Trustee on
or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of the Indenture for all purposes relating to Securities
of such series as fully as if such Board Resolution or Officers’ Certificate were set forth herein in full.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional
Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
If any of the terms
of the series are established by action taken by or pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized Officer or other authorized person of the Company and delivered to the Trustee at
or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the series.
26
With respect to Securities of a series subject to a Periodic Offering, such Board Resolution or
Officers’ Certificate may provide general terms for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or an indenture supplemental thereto, or that
such terms shall be determined by the Company, or one or more of the Company’s agents designated in an Officers’ Certificate, in accordance with a Company Order.
Section 3.02
Denominations
.
The Securities of each series shall be issuable only in registered form without coupons in such minimum denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such specified minimum denomination with respect to the Securities of any series, the Securities of such series shall be issuable in minimum denominations of $1,000 and any integral multiple
thereof.
Section 3.03
Execution,
Authentication,
Delivery
and
Dating
.
The Securities shall be executed on behalf of the Company by the Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief
Financial Officer, President or any Vice President of the Company and need not be attested. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time 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 did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities;
provided,
however
, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures (including, without limitation, the
receipt by the Trustee of electronic instructions from the Company or its duly authorized agents, thereafter promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee
prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.01 and
Section 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, in addition to any Officers’ Certificate and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section 1.02, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) the form and terms (or the manner of determining the terms) of such Securities have been established by or pursuant to Board Resolution as
permitted by Section 2.01, that such form or forms have been established in conformity with the provisions of this Indenture;
27
(2) if the terms of such Securities have been, or in the case of Securities of a series offered
in a Periodic Offering, will be, established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel;
(3) that such Securities, when authenticated and delivered by the Trustee upon receipt of a Company Order and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits of this Indenture, equally and ratably with all other Securities, if
any, of such series Outstanding;
(4) such other matters as the Trustee may request; and
(5) if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, also stating that
all conditions precedent to the execution of the supplemental indenture with respect to that series of Securities have been complied with, the Company has the power to execute and deliver any such supplemental indenture and has taken all necessary
action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws and legal principles affecting creditors’ rights generally from time to time in effect and to general equitable principles, whether applied in an
action at law or in equity).
If such form or forms or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties, liabilities or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
With respect to Securities of a series not to be originally issued at one time, the Trustee may rely upon the
Opinion of Counsel and the other documents delivered pursuant to Section 2.01 and Section 3.01 and this Section, as applicable, in connection with the first authentication of Securities of such series and any subsequent request by the
Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company that as of the date of such request, the statements made in the Officers’ Certificate shall be
true and correct as if made on such date.
28
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. 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 3.09 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 3.04
Temporary
Securities
.
Pending the preparation of Definitive Securities of any series, the Company may execute, and upon receipt of the documents required by
Section 3.03, together with a Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Securities of like series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their
execution of such Securities.
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 11.02 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 the Company shall execute and the Trustee shall upon receipt of a Company Order authenticate and deliver in exchange therefor one or more Definitive Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities of such series and tenor.
Section 3.05
Registration,
Registration
of
Transfer
and
Exchange
.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any
other office or agency of the Company in a Place of Payment being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Company shall, prior to the issuance of any Securities hereunder, appoint the Trustee as the initial “Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may at any time replace such Security Registrar, change such office or agency or act as its own
29
Security Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency. At all reasonable times the
Security Register shall be available for inspection by the Trustee.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section 11.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of
the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
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.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange 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 with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 or Section 11.07 not involving any
transfer.
Neither the Trustee nor the Company shall be required (1) to issue, register the transfer of or exchange Securities of any
series (or of any series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of delivery of a notice of redemption of Securities of that series selected for redemption under
Section 12.03 and ending at the close of business on the day of such delivery, or (2) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Note Registrar shall be
responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act or applicable state securities laws.
Notwithstanding any other provision in this Indenture and except as otherwise specified as contemplated by Section 3.01, no Global
Security may be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depository for such
30
Global Security or any nominee thereof, and no such transfer may be registered, except as provided in this paragraph. Every Security authenticated and delivered upon registration or transfer of,
or in exchange for or in lieu of, a Global Security shall be a Global Security, except as provided in this paragraph. If (1) (A) the Depository for a Global Security notifies the Company that it is unwilling or unable to continue as Depository
for such Global Security or ceases to be a clearing agency registered under the Exchange Act, and (B) a successor Depository is not appointed by the Company within 90 days, (2) an Event of Default has occurred and is continuing with
respect to the Securities of such series and the Security Registrar has received a written request from the Depository to issue certificated securities in lieu of all or a portion of the Global Securities of such series (in which case the Company
shall deliver certificated securities within 30 days of such request) or (3) the Company determines in its sole discretion that Securities of a series issued in global form shall no longer be represented by a Global Security, then such Global
Security may be exchanged by such Depository for Definitive Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, registered in the names of, and the transfer of such Global Security or
portion thereof may be registered to, such Persons as such Depository shall direct.
Section 3.06
Mutilated,
Destroyed,
Lost
and
Stolen
Securities
.
If any mutilated Security is surrendered to the Trustee, together with such
security or indemnity bond as may be required by the Company or the Trustee to protect each of them and any agent of either of them harmless, the Company shall execute and upon its request the Trustee shall authenticate and deliver in exchange
therefore a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any
Security and (2) such security or indemnity bond as may be required by them to protect 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 has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously Outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or registration such original
Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity bond provided
therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any
such mutilated, destroyed, lost or stolen Security 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.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
31
connected therewith. Every new Security of any series issued pursuant to this Section in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series 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.
Section 3.07
Payment
of
Interest;
Interest
Rights
Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to 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.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record
Date and, in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so sent, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange or automated quotation system on which such Securities may be listed or traded, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
32
Subject to the foregoing provisions of this Section and Section 3.05, each Security
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
For each series of Securities, the Company shall, prior to 10:30 a.m. (Eastern time) on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 3.08
Persons
Deemed
Owners
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered in the Security Register as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.05 and Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in
any Global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such Global Security, and such Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09
Cancellation
.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time 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 canceled by the Trustee. If the Company shall so
33
acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with its customary procedures. The Company by Company Order may direct the Trustee to deliver a certificate of such destruction to the Company.
Section 3.10
Computation
of
Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a
360-day
year of twelve
30-day
months and interest on the Securities of each series for any partial period shall be computed on the
basis of a
360-day
year of twelve
30-day
months and the number of days elapsed in any partial month.
Section 3.11
CUSIP
Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (in addition to the other identification numbers printed on the
Securities), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided,
however
, that any such notice may state that no representation is made as to the correctness of
such “CUSIP” numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such “CUSIP” numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE IV
SATISFACTION AND
DISCHARGE
Section 4.01
Satisfaction
and
Discharge
of
Indenture
.
This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of such Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 3.06, and (ii) such Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
34
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity 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 by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for this purpose an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, (i) the obligations of the
Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and (ii) if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Company and/or the Trustee under Section 4.02, Section 6.06, Section 7.01 and Section 10.02 and the last
paragraph of Section 10.03 shall survive.
Section 4.02
Application
of
Trust
Money
.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
35
ARTICLE V
REMEDIES
Section 5.01
Events
of
Default
.
“
Event
of
Default
”, wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (whether or not such payment is prohibited by the provisions of Article XIV hereof); or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity (whether or not such
payment is prohibited by the provisions of Article XIV hereof); or
(3) default in the performance, or breach, of any term, covenant or
warranty of the Company in this Indenture (other than a term, covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “
Notice
of
Default
” hereunder; or
(4) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary
case, (B) consents to the entry of any order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the
benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is
for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company; and the order or decree remains unstayed and in
effect for 90 days; or
(6) any other Event of Default provided as contemplated by Section 3.01 with respect to Securities of that
series.
Section 5.02
Acceleration
of
Maturity;
Rescission
and
Annulment
.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the
Trustee or Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of
36
(or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) all of the
Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the compensation and reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment
of the
principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
When any Default has occurred and is continuing under this Indenture, the Company shall, within five (5) Business Days after becoming
aware of such Default, deliver to the Trustee an Officers’ Certificate specifying such Default.
Section 5.03
Collection
of
Indebtedness
and
Suits
for
Enforcement
by
Trustee
.
The Company covenants that
if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default
continues for a period of 30 days (whether or not such payment is prohibited by the provisions of Article XIV hereof), or
(2) default is
made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof (whether or not such payment is prohibited by the provisions of Article XIV hereof),
37
the Company will pay to the Trustee, for the benefit of Holders of such Securities, the whole
amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation and reasonable 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, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company, or any other
obligor upon such 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 such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee, provided the Trustee has knowledge of
such Event of Default, may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings 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 5.04
Trustee
May
File
Proofs
of
Claim
.
In case of any judicial proceeding relative to the Company, or any other obligor upon the Securities, their property or their creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to Holders, to pay to the Trustee any
amount due it for the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided,
however
, that the Trustee may, on behalf of Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
38
Section 5.05
Trustee
May
Enforce
Claims
Without
Possession
of
Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted
and enforced by the Trustee without the possession of any of the Securities 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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.06
Application
of
Money
Collected
.
Any money or property collected or to be applied 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 or property on account of principal or any premium or interest, upon presentation of the Securities 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 6.07;
SECOND: Subject to Article XIV, to the payment of the amounts then due and unpaid for principal of and any premium and interest on the
Securities 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 for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
Section 5.07
Limitation
on
Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or a Security, 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 with respect to the Securities of that series;
(2)
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 and, if requested, provided to the Trustee reasonable security or 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 and, if requested, provision of security or indemnity has failed to institute any such proceeding; and
(5) no written
direction inconsistent with such written request has been given to the Trustee during such
60-day
period by Holders of a majority in principal amount of the Outstanding Securities of that series;
39
it being understood and intended that no one or more of such Holders 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, 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 of such Holders.
Section 5.08
Unconditional
Right
of
Holders
to
Receive
Principal,
Premium
and
Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.05 and Section 3.07) interest on such Security on the respective Stated Maturity expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09
Restoration
of
Rights
and
Remedies
.
If the Trustee or any Holder 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 in every such case, subject to any determination in such proceeding, the Company, the Trustee and Holders shall be restored severally
and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and Holders shall continue as though no such proceeding had been instituted.
Section 5.10
Rights
and
Remedies
Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to Holders 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 5.11
Delay
or
Omission
Not
Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
40
Section 5.12
Control
by
Holders
.
Subject to the provisions of Section 6.03, Holders of a majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series;
provided,
however
, that
(1) such direction shall not be in conflict with any 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) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 5.13
Waiver
of
Past
Defaults
.
Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of Holders of all the Securities
of such series waive any past default hereunder with respect to such series and its consequences, except
(1) a continuing default in the
payment of the principal of or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or
provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any 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 5.14
Undertaking
for
Costs
.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act;
provided,
however
, that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee, in any
suit instituted by any Holder, or group of Holders,
41
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series to which the suit relates, or in any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturity expressed by such Security (or, in the case of redemption or repayment, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
Section 6.01
Certain
Duties
and
Responsibilities
.
(1) Except during the continuance of an Event of Default with respect to any series of Securities,
(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, and no implied covenants or obligations shall read into this Indenture against the Trustee (it being agreed that the permissive right of the Trustee to do things enumerated in this Indenture shall not be
construed as a duty); and
(B) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee conforming on their face 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 only whether or not they conform on their face to
the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(2) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such
person’s own affairs.
(3) 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
(A) this Subsection shall
not be construed to limit the effect of Subsection (a) of this Section;
(B) the Trustee shall not be liable for any
error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
42
(C) 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 or a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(D) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if adequate indemnity against such risk or liability is not reasonably assured to it.
(4) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02
Notice
of
Defaults
.
If a Default occurs and is continuing with respect to the Securities of any series, the Trustee shall, within 90 days
after it occurs and is known to an officer of the Trustee responsible for this Indenture, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all uncured or unwaived Defaults known to it;
provided,
however
, that, except in the case of a Default in payment on the Securities of any series, the Trustee shall be protected in withholding the notice if and so long as the board of directors, the executive committee or a trust
committee of directors or responsible officers of the Trustee determine in good faith that withholding such notice is in the interests of Holders of Securities of such series.
For all purposes of this Indenture (including, without limitation, Section 6.01 and the securities, the Trustee shall not be deemed to
have notice or be charged with knowledge of any Default, except a Default under Section 5.01(1) or Section 5.01(2) herein, unless the Trustee shall have received from the Company or from any Holder written notice thereof at its Corporate
Trust Office, and such notice references the Securities in this Indenture. In the absence of any such notice, the Trustee may conclusively assume that no such Default exists.
Section 6.03
Certain
Rights
of
Trustee
.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely on and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order (or in the case of a Periodic Offering, as agreed in procedures set forth in a Company Order pursuant to Section 3.03) and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
43
(3) 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 Officers’ Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, 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;
(6) the Trustee shall not be responsible or liable for any action taken or omitted by it in good faith at the
direction of the holders of not less than a majority in principal amount of the Notes as to the time, method and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by this Indenture;
(7) any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or
consent of any person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding upon future holders of Notes and upon Notes executed and delivered in exchange therefor or
in place thereof;
(8) 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 (and stating the occurrence of a default or Event of Default) is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture;
(9) the Trustee shall not be required to give any bond or surety in respect of the
execution of the trusts and powers under this Indenture;
(10) any permissive right of the Trustee to take or refrain from taking actions
enumerated in this Indenture or other Note Documents shall not be construed as a duty;
(11) 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, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may, without obligation to do so, 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;
44
(12) 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;
(13) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in
any such certificate previously delivered and not superseded;
(14) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(15) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
(16) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots;
interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or military authorities and governmental action.
Section 6.04
Not
Responsible
for
Recitals
or
Issuance
of
Securities
.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or sufficiency of this Indenture or
of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05
May
Hold
Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
45
Section 6.06
Money
Held
in
Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder.
Section 6.07
Compensation
and
Reimbursement
.
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from time to time such compensation for all services rendered by it hereunder as shall be
mutually agreed upon by the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee and any predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee or any predecessor Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its gross negligence or willful misconduct; and
(3) to indemnify the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of enforcing this Indenture against the Company (including this Section 6.07) and this Indenture and defending itself against any claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder and regardless of whether any claims involve third parties or the Company.
The obligations of the Company under this
Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee or any predecessor Trustee under applicable law, when the Trustee or any predecessor
Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(4) or Section 5.01(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any applicable Bankruptcy Law.
To secure the Company’s payment
obligations in this Section 6.07, the Trustee or any predecessor Trustee is hereby granted a lien prior to the Securities against all money or property held or collected by the Trustee, in its capacity as Trustee.
The provisions of this Section shall survive the satisfaction and discharge of this Indenture and the defeasance of the Securities and the
resignation or removal of the Trustee.
46
Section 6.08
Disqualification;
Conflicting
Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09
Corporate
Trustee
Required;
Eligibility
.
There shall at all times be one or more Trustees hereunder with respect to the Securities of each series, at least one of which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus required by the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10
Resignation
and
Removal;
Appointment
of
Successor
.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may
resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting 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
47
purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company, acting pursuant to the authority of a Board Resolution, may remove the Trustee with respect
to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee
shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Securities of any series shall be appointed by Act of Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11
Acceptance
of
Appointment
by
Successor
.
(1) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges
and all amounts due to it under Section 6.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
48
(2) 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 retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (A) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (B) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (C) 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 as
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; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, but, on request of the Company, or any successor Trustee, such retiring Trustee shall, upon payment of its charges and all amounts due to it under Section 6.07, duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12
Merger,
Conversion,
Consolidation
or
Succession
to
Business
.
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 the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder,
provided
such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. 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.
49
Section 6.13
Preferential
Collection
of
Claims
Against
the
Company
.
If and when the Trustee shall be or become a creditor of the Company, or any other obligor upon the
Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or any such other obligor.
Section 6.14
Appointment
of
Authenticating
Agent
.
The Trustee (upon notice to the Company) may appoint an Authenticating Agent or Agents 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 (in accordance with procedures acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, 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.
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 all or substantially all of the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an 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.
Except with respect to an Authenticating Agent appointed at the request of the Company, the Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
50
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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Wilmington Trust, National Association
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As Trustee
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By:
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As Authenticating Agent
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Authorized Signatory
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ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.01
The
Company
to
Furnish
Trustee
Names
and
Addresses
of
Holders
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Security Registrar, the Trustee may request in writing a list from the Company, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders,
which list may be conclusively relied upon by the Trustee.
Section 7.02
Preservation
of
Information;
Communications
to
Holders
.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(2) The rights of Holders to
communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any agent of any of them shall be held accountable by reason of the disclosure of any information as to the names
51
and addresses of the Holders of Securities in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 7.03
Reports
by
Trustee
.
As promptly as practicable after each September 15 beginning with the September 15 following the date of this
Indenture, the Trustee shall send to each Holder a brief report dated as of September 15 that complies with Trust Indenture Act Section 313(a). The Trustee also shall comply with Trust Indenture Act Section 313(b). Prior to delivery to the Holders,
the Trustee shall deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.03;
provided
,
however
, that no recourse may be taken against the Trustee for its failure to deliver a copy of such
report to the Company prior to its delivery of the report to the Holders.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock
exchange.
Section 7.04
Reports
by
the
Company
.
The Company shall file with the Trustee and the Commission, and transmit to Holders, within 15 days after the Company is required to file the
same with the Commission, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act;
provided
that with respect to any such information, documents and reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system, the Company shall notify the Trustee in the manner prescribed herein of
each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the financial information so filed. The Trustee shall have no duty to search for or obtain any electronic or other filings
that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of reports, information and documents to the Trustee pursuant to this Section 7.04 shall be solely for purposes of
compliance with this Section 7.04 and, if applicable, with Section 314(a) of the Trust Indenture Act, but shall not relieve the Company of the requirement to deliver the Officers’ Certificates referred to below. The
Trustee’s receipt of such reports, information and documents is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice to it of the content thereof or any matter
determinable from the contents thereof, including the Company’s compliance with any of its covenants hereunder, as to which the Trustee is entitled to rely upon Officers’ Certificates. The Trustee will have no responsibility whatsoever to
monitor whether such filing or posting has occurred or the timeliness of such filing or posting.
52
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01
The
Company
May
Consolidate,
Etc.,
Only
on
Certain
Terms
.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every other covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02
Successor
Substituted
.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons and may liquidate and dissolve.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 9.01
Supplemental
Indentures
Without
Consent
of
Holders
.
Without the consent of any Holders of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company under
this Indenture and the Securities and the assumption by such successor Person of the obligations of the Company hereunder;
53
(2) to add covenants and Events of Default for the benefit of the Holders of all or any series of
such Securities or to surrender any right or power conferred by this Indenture upon the Company or to make any change that does not adversely affect the legal rights hereunder of any Holder in any material respect;
(3) to add to, change or eliminate any of the provisions of this Indenture,
provided
that any such addition, change or elimination
shall become effective only after there are no such Securities of any series entitled to the benefit of such provision outstanding;
(4)
to establish the forms or terms of the Securities of any series issued hereunder;
(5) to cure any ambiguity or correct any defect or
inconsistency in this Indenture;
(6) to evidence the acceptance of appointment by a successor Trustee with respect to one or more series
of Securities or otherwise;
(7) to qualify this Indenture under the Trust Indenture Act;
(8) to provide for uncertificated securities in addition to certificated securities;
(9) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities,
provided
that such action does not adversely affect the interests of the Holders of Securities of such series or any other series; and
(10) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be
listed or traded.
Section 9.02
Supplemental
Indentures
with
Consent
of
Holders
.
With the consent of the Holders of not less than a majority in aggregate principal amount of all Outstanding Securities affected by such
supplemental indenture (voting as one class), the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of,
this Indenture, or modifying in any manner the rights of Holders of Securities of such series under this Indenture;
provided
that the Company and the Trustee may not, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or premium, if any, on or the rate of interest thereon or adversely affect any right to convert or exchange any Security into any other security, or alter the method of computation of interest;
54
(2) reduce the percentage in principal amount of Securities required for any such supplemental
indenture or for any waiver provided for in this Indenture;
(3) change the Company’s obligation to maintain an office or agency for
payment of Securities and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of any payment
of principal of, premium, if any, or interest on, any Security;
(5) modify the provisions of this Indenture with respect to the
subordination of any Security in a manner adverse to the Holder thereof; or
(6) modify any of the provisions of this Indenture relating
to the execution of supplemental indentures with the consent of Holders of Securities which are discussed in this Section or modify any provisions relating to the waiver by Holders of Securities of past defaults and covenants, except to increase any
required percentage or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03
Execution
of
Supplemental
Indentures
.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and such amendment, supplement or waiver constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms. Such Opinion of Counsel
shall be at the expense of the Company. The Trustee shall enter into any supplemental indenture which does not adversely affect the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04
Effect
of
Supplemental
Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
55
Section 9.05
Conformity
with
Trust
Indenture
Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06
Reference
in
Securities
to
Supplemental
Indentures
.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, bear a
notation as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to make a notation or issue a new Security shall not affect the validity and effect of any amendment, supplement or
waiver.
ARTICLE X
COVENANTS
Section 10.01
Payment
of
Principal,
Premium
and
Interest
.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. An installment of principal or interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent
holds as of 10:30 a.m., New York City time, money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture.
Section 10.02
Maintenance
of
Office
or
Agency
.
The Company will maintain in each Place of Payment for any series of Securities 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. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required 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 or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders,
may be made at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
56
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,
however
, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
Except as otherwise specified with respect to a series of Securities as contemplated
by Section 3.01, the Company hereby initially designates as the Place of Payment for each series of Securities to be the Corporate Trust Office of the Trustee, and initially appoints the Trustee as Paying Agent at its office at 1100 North
Market Street, Wilmington, Delaware 19890, as the Company’s office or agency for each such purpose in such city.
Section 10.03
Money
for
Securities
Payments
to
Be
Held
in
Trust
.
If the Company or any
of its Subsidiaries shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if
any, on Securities of that 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; (2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; 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.
57
Any money deposited with the Trustee or any Paying Agent in trust for the payment of the
principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the state which escheat laws control and the Trustee or
any Paying Agent shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the state which escheat laws control for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided,
however,
that the Trustee or such Paying Agent, before being required to make any such payment, may at
the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be paid to the state whose escheat laws control.
Section 10.04
Statement
by
Officers
as
to
Default
.
The Company will deliver to the Trustee, within 120 days after the end of
each Fiscal Year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signer or signers thereof the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 10.05
Waiver
of
Certain
Covenants
.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 10.02 through
Section 10.03 with respect to the Securities of any series if before the time for such compliance Holders of at least a majority in aggregate principal amount of the Outstanding Securities of all affected series (voting as one class) shall, by
Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision 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 term, provision or condition shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such term, provision or condition, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
58
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01
Applicability
of
Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02
Election
to
Redeem;
Notice
to
Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, not less than 35 nor more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee and
provided
,
notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article IV or Article XIII), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed
and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (1) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (2) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such
restriction or condition.
Section 11.03
Selection
by
Trustee
of
Securities
to
be
Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected not more than 35 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption,
on a
pro
rata
basis, by lot or by any other method which the Trustee deems fair and appropriate and which complies with any securities exchange or other applicable requirements for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
59
Section 11.04
Notice
of
Redemption
.
Notice of redemption shall be given by first-class mail (if international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register;
provided
, notice may be given more than 60 days prior to a redemption date if the notice is issued
in connection with Article IV or Article XIII.
All notices of redemption shall state:
(1) the Redemption Date,
(2)
the Redemption Price,
(3) if less than all the Outstanding Securities of any series and of a specified tenor are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Company’s request made in the form of an
Officers’ Certificate (made to the Trustee at least 5 days (or such shorter period as shall be satisfactory to the Trustee) prior to the mailing of such notice), by the Trustee in the name and at the expense of the Company. Any such request
will set forth the information to be stated in such notice, as provided by this Section 11.04.
Section 11.05
Deposit
of
Redemption
Price
.
On or prior to 10:30 a.m. (Eastern time) on any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06
Securities
Payable
on
Redemption
Date
.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall
60
be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided,
however
, that, unless otherwise specified as contemplated by
Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such 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 3.07.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07
Securities
Redeemed
in
Part
.
Any Security which 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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
Section 12.01
Applicability
of
Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement
of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
The minimum
amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02.
Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.02
Satisfaction
of
Sinking
Fund
Payments
with
Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), and (2) may apply
as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series;
provided
that such Securities have not
61
been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
Redemption
of
Securities
for
Sinking
Fund
.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and stating
the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.06 and Section 11.07.
ARTICLE XIII
DEFEASANCE
Section 13.01
Applicability
of
Article
.
The provisions of this Article shall be applicable to each series of Securities except as otherwise specified as contemplated by
Section 3.01 for Securities of such series.
Section 13.02
Legal
Defeasance
.
In addition to discharge of the Indenture pursuant to Section 4.01, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in Clause (1) below, and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities of such series and the Company’s right of optional redemption, if any, (ii) substitution of mutilated, destroyed, lost or stolen Securities,
(iii) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor or on the specified redemption dates therefor (but not upon acceleration), and remaining rights of
the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, and the Company’s obligations in connection therewith (including, but not limited to,
Section 6.07), (v) the rights, if any, to convert or exchange the Securities of such series, (vi) the rights of Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under Section 10.02), and the Trustee, at the expense of the Company, shall, upon a Company Request, execute proper instruments acknowledging the same, if the
conditions set forth below are satisfied (hereinafter, “
defeasance
”):
(1) The Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust, for the purposes of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of the Securities of such series (A) cash
in an amount, or (B) in the case of any series of Securities the payments on which may only be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or (C) a combination thereof, certified to be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay (i) the principal and interest and premium, if any, on all Securities of such series on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to
Clause (3) below, and (ii) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
62
(2) The Company has delivered to the Trustee an Opinion of Counsel based on the fact that
(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that,
and such opinion shall confirm that, Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to 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 deposit, defeasance and discharge had not occurred;
(3) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(4) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) Such defeasance shall not cause the Trustee to have a conflicting interest within the meaning
of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act);
(6) Such defeasance shall not result
in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(7) Such defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision have been complied with.
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For this purpose, such defeasance means that the Company and any other obligor upon the
Securities of such series shall be deemed to have paid and discharged the entire debt represented by the Securities of such series, which shall thereafter be deemed to be “
Outstanding
” only for the purposes of Section 13.04 and
the rights and obligations referred to in Clauses (i) through (vii), inclusive, of the first paragraph of this Section, and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned.
Section 13.03
Covenant
Defeasance
.
The Company and any other obligor shall be released on the 91st day after the date of the deposit referred to in Clause (1) below from
its obligations under Section 7.04 and Section 8.01 with respect to the Securities of any series on and after the date the conditions set forth below are satisfied (hereinafter, “
covenant
defeasance
”), and the
Securities of such series shall thereafter be deemed to be not “
Outstanding
” for the purposes of any request, demand, authorization, direction, notice, waiver, consent or declaration or other action or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to the 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 such Section or by reason of any
reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01, but, except as specified above, the remainder of this
Indenture and the Securities of such series shall be unaffected thereby. The following shall be the conditions to application of this Section 13.03:
(1) The Company has irrevocably 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 Holders of the Securities of such series, (A cash in an amount, or (B) in the case of any series of Securities the payments on which may only
be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (i) the principal and interest and premium, if any, on all Securities of such series on
each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (2) below, and (ii) any mandatory sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such series;
64
(2) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory
sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(3) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of Counsel which shall confirm that
Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner
and at the same time as would have been the case if such deposit and covenant defeasance had not occurred;
(5) Such covenant defeasance
shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act);
(6) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to
which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent
provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 13.04
Application
by
Trustee
of
Funds
Deposited
for
Payment
of
Securities
.
Subject to the provisions of the last paragraph of Section 10.03, all moneys or U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.02 or Section 13.03 (and all funds earned on such moneys or U.S. Government Obligations) 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 Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent required by law. Subject to Section 13.02 and Section 13.03, the Trustee shall promptly pay to the Company upon Company Order any moneys held by it at any time,
which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding
Securities in question.
65
Section 13.05
Repayment
to
the
Company
.
The Trustee and any Paying Agent promptly shall pay or return to the Company upon Company Request any money and U.S. Government Obligations
held by them at any time that are not required for the payment of the principal of and any interest on the Securities of any series for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or
Section 13.03, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to
the Outstanding Securities in question.
The provisions of the last paragraph of Section 10.03 shall apply to any money held by the
Trustee or any Paying Agent under this Article that remains unclaimed for two years after the Maturity of any series of Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or
Section 13.03.
Section 13.06
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money or U. S. Government Obligations in accordance with this Article by reason of
any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Securities of the
applicable series shall be revived and reinstated as though no deposit had occurred pursuant to this Indenture until such time as the Trustee or the Paying Agent is permitted to apply all such money or U. S. Government Obligations in accordance with
this Article;
provided,
however
, that if the Company has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE XIV
SUBORDINATION OF
SECURITIES
Section 14.01
Securities
Subordinated
to
Senior
Debt
.
The payment by the Company of the principal of, premium, if any, and interest, if any, on any series of Securities issued hereunder shall be
subordinated to the extent set forth in an indenture supplemental hereto relating to such Securities; provided that nothing herein or in any supplemental indenture hereto shall affect the obligations of the Company to the Trustee set forth in
Section 6.07.
[Remainder of Page Intentionally Left Blank]
66
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed in multiple
counterparts, each of which so executed shall be deemed to be an original, but all of which shall together constitute but one and the same instrument, all as of the day and year first above written.
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INVESTAR HOLDING CORPORATION
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By:
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/s/ John J. D’Angelo
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Name:
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John J. D’Angelo
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Title:
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President and Chief Executive Officer
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Michael H. Wass
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Name:
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Michael H. Wass
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Title:
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Vice President
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Exhibit 4.2
INVESTAR HOLDING CORPORATION
as
Issuer
and
WILMINGTON TRUST,
NATIONAL ASSOCIATION
as Trustee
FIRST SUPPLEMENTAL INDENTURE
dated as of March 24, 2017
to the Indenture
dated as of
March 24, 2017
SUBORDINATED DEBT SECURITIES
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (“First Supplemental Indenture”), dated as of March 24, 2017, by and between Investar Holding
Corporation, a Louisiana corporation (the “Company”), and Wilmington Trust, National Association, a national banking association, not in its individual capacity but solely as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company
and the Trustee have executed and delivered that certain Indenture, dated as of March 24, 2017 (the “Base Indenture” and as supplemented by this First Supplemental Indenture and further supplemented from time to time, the
“Indenture”), to provide for the issuance from time to time by the Company of its unsecured subordinated indebtedness to be issued in one or more series as provided in the Indenture;
WHEREAS, the issuance and sale of $18,600,000 in aggregate principal amount of a new series of Securities of the Company designated as its
6.00%
Fixed-to-Floating
Rate Subordinated Notes due 2027 (the “Notes”) have been authorized by resolutions adopted by the Pricing Committee of the Board of
Directors of the Company;
WHEREAS, the Company desires to issue and sell $18,600,000 in aggregate principal amount of the Notes as of the
date hereof and to establish the terms of the Notes;
WHEREAS, all things necessary to make this First Supplemental Indenture a legal and
binding supplement to the Base Indenture in accordance with its terms and the terms of the Base Indenture have been done;
WHEREAS, the
Company has complied with all conditions precedent provided for in the Base Indenture relating to this First Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the Company and
the Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the Notes, as follows:
ARTICLE I
SCOPE OF FIRST SUPPLEMENTAL INDENTURE
Section 1.01
Scope
.
This First Supplemental Indenture constitutes a supplement to the Base Indenture
and an integral part of the Indenture and will be read together with the Base Indenture as though all the provisions thereof are contained in one instrument. Except as expressly amended by the First Supplemental Indenture, the terms and provisions
of the Base Indenture will remain in full force and effect. Notwithstanding the foregoing, this First Supplemental Indenture will only apply to the Notes.
1
ARTICLE II
DEFINITIONS
Section 2.01
Definitions and Other Provisions of General Application
.
For all purposes of this First
Supplemental Indenture unless otherwise specified herein:
(a) all terms used in this First Supplemental Indenture
which are not otherwise defined herein will have the meanings they are given in the Base Indenture;
(b) the
provisions of general application stated in Sections 1.01 through 1.20 of the Base Indenture will apply to this First Supplemental Indenture, except that the words “herein”, “hereof”, “hereto” and “hereunder”
and other words of similar import refer to this First Supplemental Indenture as a whole and not to the Base Indenture or any particular Article, Section or other subdivision of the Base Indenture or this First Supplemental Indenture;
(c) Section 1.01 of the Base Indenture is amended and supplemented, solely with respect to the Notes, by inserting the
following additional defined terms in their appropriate alphabetical positions:
“
Calculation Agent
” has the meaning
specified in Section 3.02(d)(iv).
“
DTC
” means the Depository Trust Company.
“
Federal Reserve
” means the Board of Governors of the Federal Reserve System or any successor regulatory authority with
jurisdiction over bank holding companies.
“
Fixed Rate Interest Payment Date
” has the meaning specified in
Section 3.02(d)(i).
“
Fixed Rate Period
” has the meaning specified in Section 3.02(d)(i).
“
Floating Rate Interest Payment Date
” has the meaning specified in Section 3.02(d)(ii).
“
Floating Rate Period
” has the meaning specified in Section 3.02(d)(ii).
“
Interest Payment Date
” has the meaning specified in Section 3.02(d)(ii).
“
Issue Date
” means March 24, 2017.
“
London Banking Day
” means any day on which commercial banks are open for business (including dealing in U.S. dollars) in
London.
“
Representative Amount
” has the meaning specified in the definition of “Three-Month LIBOR.”
“
Reset Rate Determination Date
” means the second London Banking Day immediately preceding the first day of each applicable
interest period commencing on the first Floating Rate Interest Payment Date.
“
Tax Event
” means the receipt by the
Company of an opinion of independent tax counsel to the effect that as a result of (a) an amendment to, or change (including any announced
2
prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change becomes effective or which pronouncement or decision is announced on or after the date of original issuance of the Notes, there is more
than an insubstantial risk that the interest payable by the Company on the Notes is not, or within 90 days of the date of such opinion will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes.
“
Tier 2 Capital Event
” means the Company’s good faith determination that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any rules, guidelines or policies of an applicable regulatory authority for the Company or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of original issuance of the Notes, in each case, that
there is more than an insubstantial risk that the Company will not be entitled to treat the Notes then outstanding as Tier 2 Capital (or its then equivalent if the Company were subject to such capital requirement) for purposes of capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable, for so long as an Note is outstanding.
“
Three-Month
LIBOR
” means, for any interest period, the offered rate for deposits in U.S. dollars having a maturity of three months that appears on the display on Bloomberg Page BBAM1 (or any successor or substitute page of such service, or any
successor to such service selected by the Company), or any other page as may replace that page on that service, for the purpose of displaying the London interbank rates for U.S. dollars, as of 11:00 a.m., London time, on the Reset Rate Determination
Date related to such interest period. If such rate does not appear on such page at such time, then the Calculation Agent will request the principal London office of each of four major reference banks in the London interbank market, selected by the
Company for this purpose and whose names and contact information will be provided by the Company to the Calculation Agent, to provide such bank’s offered quotation to prime banks in the London interbank market for deposits in U.S. dollars with
a term of three months as of 11:00 a.m., London time, on such Reset Rate Determination Date and in a principal amount equal to an amount for a single transaction in U.S. dollars in the relevant market at the relevant time as determined by the
Company and provided to the Calculation Agent (a “Representative Amount”). If at least two such quotations are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are provided, the Calculation Agent will request each of three major banks in the City of New York selected by the Company for this purpose and whose names and contact information will be
provided by the Company to the Calculation Agent, to provide such bank’s rate for loans in U.S. dollars to leading European banks with a term of three months as of approximately 11:00 a.m., New York City time, on such Reset Rate Determination
Date and in a Representative Amount. If at least two such rates are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean of such quotations. If fewer than two such rates are
so provided, then Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be set to equal the Three-Month LIBOR for the immediately preceding interest period or, in the
3
case of the interest period commencing on the first Floating Rate Interest Payment Date, 2.055%. All percentages used in or resulting from any calculation of Three-Month LIBOR will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%. Notwithstanding the foregoing, in the event that Three-Month LIBOR as determined in accordance with this definition is less than zero,
Three-Month LIBOR for such interest period will be deemed to be zero.
“1940 Act Event” means the receipt by the Company of an
opinion of independent counsel to the effect that there is more than an insubstantial risk that the Company is required, or will be required within 90 days of the date of such opinion, to register as an investment company under the Investment
Company Act of 1940, as amended.
(d) Section 1.1 of the Base Indenture is amended and supplemented, solely with
respect to the Notes, by replacing the corresponding defined term in the Base Indenture with the following defined terms:
“Senior
Debt” means: (i) the principal and any premium or interest for money borrowed or purchased by the Company (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company,
whether or not such claim for post petition interest is allowed in such proceedings); (ii) the principal and any premium or interest for money borrowed or purchased by another Person and guaranteed by the Company; (iii) any deferred
obligation for the payment of the purchase price of property or assets evidenced by a note or similar instrument or agreement; (iv) any obligations to general and trade creditors; (v) any obligation arising from direct credit substitutes;
(vi) any obligation associated with derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; and (vii) all obligations of the type referred to in clauses (i) through (vi)
above of other persons or entities for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise, whether or not classified as a liability on a balance sheet prepared in accordance with accounting principles
generally accepted in the United States; in each case, whether outstanding on the date the Indenture becomes effective, or created, assumed or incurred after that date. Senior Debt excludes (a) the Notes, (b) any indebtedness,
obligation or liability referred to in clauses (i) through (vii) above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or
liability is junior to, or ranks equally in right of payment with, the Notes; and (c) the junior subordinated debentures issued to First Community Louisiana Statutory Trust I and any guarantee of the Company in respect of the equity securities
or other securities of First Community Louisiana Statutory Trust I. Notwithstanding the foregoing, and for the avoidance of doubt, if the Federal Reserve (or other competent regulatory agency or authority) promulgates any rule or issues any
interpretation that defines general creditor(s), the main purpose of which is to establish criteria for determining whether the subordinated debt of a financial or bank holding company is to be included in its capital, then the term “general
creditors” as used in this definition will have the meaning as described in that rule or interpretation.
4
ARTICLE III
FORM AND TERMS OF THE NOTES
Section 3.01
Form and Dating
.
(a) The Notes will be substantially in the form of
Exhibit A
attached hereto. The Notes may have a legend or
legends or endorsements as may be required to comply with any law or with any rules of any securities exchange or usage. The Notes will be dated the date of their authentication.
(b) The terms contained in the Notes will constitute, and are hereby expressly made, a part of the Indenture as
supplemented by this First Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 3.02
Terms of the Notes
.
The following terms relating to the Notes are hereby established:
(a)
Title
.
The Notes will constitute a series of Securities having the title “Investar Holding
Corporation 6.00%
Fixed-to-Floating
Rate Subordinated Notes due 2027” and the CUSIP number 46134L AA3.
(b)
Principal Amount
.
The aggregate principal amount of the Notes that may be authenticated and delivered
under the Indenture, as amended hereby, will be Eighteen Million Six Hundred Thousand Dollars ($18,600,000) on the Issue Date. Provided that no Event of Default has occurred and is continuing with respect to the Notes, the Company may, without
notice to or the consent of the Holders, create and issue additional Notes having the same terms as, and ranking equally and ratably with, the Notes in all respects and so that such additional Notes will be consolidated and form a single series
with, and have the same terms as to status, redemption or otherwise as, the Notes initially issued, provided that such additional Notes are fungible for U.S. federal income tax purposes with the Notes.
(c)
Person to Whom Interest is Payable
.
Interest payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose name the Notes are registered for such interest at the close of business on the 15
th
day of the month immediately preceding the
applicable Interest Payment Date, whether or not such day is a Business Day. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice of which will be given to Holders of
Notes and the Trustee not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may
be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in the Base Indenture.
(d)
Interest
.
(i) The Notes will bear interest at a fixed rate of 6.00% per annum from and including March 24, 2017 to, but
excluding, March 30, 2022 (the “Fixed Rate Period”). Interest accrued on the Notes during the Fixed Rate Period will be payable semi-annually in arrears on March 30 and September 30 of each year, commencing on
September 30, 2017 (each such date a “Fixed Rate Interest Payment Date”).
5
(ii) The Notes will bear a floating interest rate from and including
March 30, 2022 to the Maturity Date or Redemption Date (the “Floating Rate Period”). The floating interest rate will be reset quarterly, and the interest rate for any Floating Rate Period will be equal to Three-Month LIBOR plus
3.945%. During the Floating Rate Period, interest on the Notes will be payable quarterly in arrears on March 30, June 30, September 30 and December 30 of each year commencing on June 30, 2022 through the Maturity Date or
Redemption Date (each such date, a “Floating Rate Interest Payment Date”, together with a Fixed Rate Interest Payment Date, an “Interest Payment Date”).
(iii) The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period will be
computed on the basis of a
360-day
year consisting of twelve
30-day
months up to, but excluding March 30, 2022, and, the amount of interest payable on any Floating
Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a
360-day
year and the number of days actually elapsed. In the event that any scheduled Interest Payment Date for the
Notes falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date will be treated as being made on the date
that the payment was first due and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date);
provided
, that in the event that any scheduled Floating Rate Interest Payment Date falls on a day
that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day, and, in each such case, the amounts
payable on such Business Day will include interest accrued to but excluding such Business Day (notwithstanding Section 1.13 of the Base Indenture). Dollar amounts resulting from interest calculations will be rounded to the nearest cent, with
one-half
cent being rounded upward.
(iv) The Company agrees that for so long as
any of the Notes are outstanding there will at all times be an agent appointed to calculate Three-Month LIBOR in respect of each Floating Rate Period (the “Calculation Agent”). The calculation of Three-Month LIBOR for each applicable
Floating Rate Period by the Calculation Agent will (in the absence of manifest error) be final and binding. The Calculation Agent will have all the rights, protections and indemnities afforded to the Trustee under the Base Indenture and hereunder.
The Company appoints Wilmington Trust, National Association, as Calculation Agent for the purposes of determining Three-Month LIBOR for each Floating Interest Period, and Wilmington Trust, National Association accepts the appointment. The
Calculation Agent may be removed by the Company at any time. If the Calculation Agent is unable or unwilling to act as Calculation Agent or is removed by the Company, the Company will promptly appoint a replacement Calculation Agent, which does not
control or is not controlled by or under common control with the Company or its Affiliates. The Calculation Agent may not resign its duties without a successor having been duly appointed;
provided
, that if a successor Calculation Agent has
not been appointed by the Company and such successor accepted such position within 30 days after the giving of notice of resignation by the Calculation Agent, the resigning Calculation Agent may petition, at the expense of the Company, any court of
competent jurisdiction for the
6
appointment of a successor Trustee with respect to such series. The Calculation Agent’s calculation of the amount of any interest payable after the first Reset Rate Determination Date will
be maintained on file at the Calculation Agent’s principal offices.
(e)
Place of Payment of Principal and
Interest
.
So long as the Notes will be issued in global form, the Company will make, or cause the Paying Agent to make, all payments of principal and interest on the Notes in immediately available funds to the Depository or its nominee,
in accordance with applicable procedures of the Depository.
(f)
Redemptio
n
.
The Company may,
at its option, redeem the Notes, in whole or in part, on any Interest Payment Date on or after March 30, 2022. The Company may also, at its option, redeem the Notes before the Stated Maturity Date, in whole, but not in part, at any time, upon
the occurrence of a Tier 2 Capital Event, a Tax Event or a 1940 Act Event. Any such redemption will be at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (the “Redemption
Price”) to but excluding, the date of redemption (the “Redemption Date”), No redemption of the Notes by the Company prior to the Stated Maturity Date will be made without the prior approval of the Federal Reserve if such prior
approval is or will be required at the scheduled Redemption Date. The provisions of Article XI of the Base Indenture and Section 3.02(f) of the First Supplemental Indenture will apply to the redemption of any Notes by the Company. If less than the
then outstanding principal amount of this Note is redeemed, (i) a new note will be issued representing the unredeemed portion without charge to the Holder thereof and (ii) such redemption will be effected on a pro rata basis as to the
Holders of the Notes subject to adjustments in the discretion of Company to ensure the unredeemed portion of this Note remains in an authorized denomination hereunder. For purposes of clarity, upon a partial redemption, a like percentage of the
principal amount of every Note held by every Holder will be redeemed; provided however that the Company may round the portion to be redeemed of this Note up or down so that the unredeemed amount remains an authorized denomination hereunder with
written notice provided to the Trustee, without any impact on the pro rata amount to be redeemed from other holders of Notes. The Notes are not subject to redemption or prepayment at the option of the Holders.
(g)
Sinking Fund
.
There will be no sinking fund for the Notes.
(h)
Denomination
.
The Notes and any beneficial interest in the Notes will be in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof.
(i)
Currency of the Notes
.
The Notes will
be denominated, and payment of principal and interest of the Notes will be payable in, the currency of the United States of America.
(j)
Acceleration
.
Neither the Trustee nor the Holders of the Notes will have the right to accelerate the
maturity of the Notes unless there is an Event of Default specified under clause (4) or (5) of Section 5.01 of the Base Indenture. If an Event of Default specified in clause (4) or (5) of Section 5.01 of the Base Indenture
occurs, then the principal amount of all of the outstanding Notes, including any accrued and unpaid interest on the Notes, will automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee
or the Holders of the Notes in accordance with the provisions of Section 5.02 of the Base Indenture.
7
(k)
Stated Maturity
.
The principal of the Notes will be
payable on March 30, 2027, subject to acceleration as provided under the Indenture.
(l)
Registered
Form
.
The Notes will be issuable as registered global Securities, and the Depository for the Notes will be DTC or any successor Depository appointed by the Company within 90 days of the termination of services of DTC (or any successor to
DTC). Sections 3.04 and 3.07 of the Base Indenture will apply to the Notes.
(m)
Acceleration of Maturity,
Rescission and Annulment
.
Section 5.02 of the Base Indenture will apply to the Notes, except that the first paragraph thereof will be substituted with the following:
“If an Event of Default specified in clause (4) or (5) of Section 5.01 occurs, the principal amount of all the Notes, together
with accrued and unpaid interest, if any, thereon, will automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. The Maturity of the Notes will not otherwise be
accelerated as a result of an Event of Default.”
(n)
Ranking
.
The Notes will rank junior to and
will be subordinated to all Senior Debt of the Company, whether existing as of the date of this First Supplemental Indenture, or hereafter issued or incurred. The Notes will rank equally among themselves and with all of the Company’s other
subordinated unsecured indebtedness that, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, provides that such obligations are not superior in right of payment to the Notes or to other indebtedness
ranking equally with, or is not subordinate to, the Notes; provided that the Notes will rank senior to Company’s obligations relating to the junior subordinated debentures issued to First Community (LA) Statutory Trust I and any guarantee of
the Company in respect of the equity securities or other securities of First Community (LA) Statutory Trust I.
(o)
No Collateral
.
The Notes will not be entitled to the benefit of any security interest in, or
collateralization by, any rights, property or interest of the Company.
(p)
Additional Terms
.
Other
terms applicable to the Notes are as otherwise provided for in the Base Indenture, as supplemented by this First Supplemental Indenture.
ARTICLE IV
SUPPLEMENTAL
INDENTURES
Section 4.01
Supplemental Indentures
.
The following paragraph will be added to the
end of Section 9.02 of the Base Indenture and will only apply to the Notes:
“Not in limitation of the foregoing, without the
consent of any Holder of Notes, the Company and the Trustee may amend or supplement the Indenture or the Notes to conform the terms of the Indenture and the Notes to the description of the Notes in the prospectus supplement dated March 24, 2017
relating to the offering of the Notes.”
8
ARTICLE V
MISCELLANEOUS
Section 5.01
Trust Indenture Act
.
This First Supplemental Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of the Indenture and will, to the extent applicable, be governed by such provisions. If any provision of this First Supplemental Indenture limits, qualifies, or conflicts with a provision of the
Trust Indenture Act that is required under such act to be a part of and govern this First Supplemental Indenture, the latter provision will control.
Section 5.02
No Conversion or Exchange Rights
.
The Notes will not be convertible into or
exchangeable for any equity securities, other securities or other assets of the Company or any Subsidiary of the Company.
Section 5.03
Governing Law
.
THE LAWS OF THE STATE OF NEW YORK WILL GOVERN THIS FIRST SUPPLEMENTAL
INDENTURE AND THE NOTES.
Section 5.04
Duplicate Originals
.
The parties may sign any number of
copies of this First Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
Section 5.05
Severability
.
In case any provision in this First Supplemental Indenture or the Notes
will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 5.06
Ratification
.
The Base Indenture, as supplemented and amended by this First
Supplemental Indenture, is in all respects ratified and confirmed. The Base Indenture and this First Supplemental Indenture will be read, taken and construed as one and the same instrument. All provisions included in this First Supplemental
Indenture supersede any conflicting provisions included in the Base Indenture unless not permitted by law. The Trustee accepts the trusts created by the Base Indenture, as supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Base Indenture, as supplemented by this First Supplemental Indenture.
Section 5.07
Effectiveness
.
The provisions of this First Supplemental Indenture will become
effective as of the date hereof.
Section 5.08
Successors
.
All agreements of the Company in this
First Supplemental Indenture will bind its successors. All agreements of the Trustee in this First Supplemental Indenture will bind its successors.
Section 5.09
Indenture and Notes Solely Corporate Obligations
.
No recourse for the payment of the
principal of or interest on any Note, or for any claim based thereon or otherwise in respect thereof, will be had against any shareholder, employee, agent, officer or director, as such, past, present or future, of the Company or of any successor
Person; it being expressly
9
understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this First Supplemental Indenture and the issue of the
Notes.
Section 5.10
Trustee’s Disclaimer
.
The recitals contained herein will be taken as
the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee will not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture, the
Notes, or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.
[Remainder of page
intentionally left blank.]
10
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed as of the date first above written.
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INVESTAR HOLDING CORPORATION
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By:
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/s/ John J. D’Angelo
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Name: John J. D’Angelo
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Title: President and Chief Executive Officer
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
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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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[Signature Page to First Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
See attached.
THIS SECURITY AND THE OBLIGATIONS OF THE COMPANY (AS DEFINED HEREIN) AS EVIDENCED HEREBY (1) ARE NOT
DEPOSITS WITH OR HELD BY THE COMPANY AND ARE NOT INSURED OR GUARANTEED BY ANY FEDERAL AGENCY OR INSTRUMENTALITY, INCLUDING, WITHOUT LIMITATION, THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND (2) ARE SUBORDINATE IN THE RIGHT OF PAYMENT TO THE
SENIOR DEBT (AS DEFINED IN THE INDENTURE IDENTIFIED HEREIN).
GLOBAL NOTE
[IF A GLOBAL SECURITY, INSERT—THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR NOTES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS NOTE WILL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
[IF APPLICABLE, INSERT—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
INVESTAR HOLDING CORPORATION
6.00%
Fixed-to-Floating
Rate Subordinated Notes due 2027
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No. 2017-001
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$[ ]
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CUSIP No.: 46134L AA3
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ISIN: US46134LAA35
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Investar Holding Corporation, a Louisiana corporation (hereinafter called the “
Company
”,
which term includes any successor corporation under the Indenture hereinafter referenced), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the principal sum of
[ ] Million United States Dollars ($[ ],000.00) (or such other amount as set forth in the Schedule of
Increases or Decreases in Global Note attached hereto) on March 30, 2027 (the “
Stated Maturity Date
”), unless redeemed prior to such date, and to pay
interest thereon (i) from, and including, March 24, 2017, to, but excluding, March 30, 2022, unless redeemed prior to such date, at a rate of 6.00% per annum, semi-annually in
arrears on March 30 and September 30 of each year, commencing September 30, 2017 (each such date, a “
Fixed Rate Interest Payment Date
,” with the period from, and including, March 24, 2017 to, but excluding, the
first Fixed Rate Interest Payment Date and each successive period from, and including, a Fixed Rate Interest Payment Date to, but excluding, the next Fixed Rate Interest Payment Date being a “
Fixed Rate Period
”) and (ii) from,
and including, March 30, 2022 to, but excluding, the Stated Maturity Date, unless redeemed subsequent to March 30, 2022, but prior to the Stated Maturity Date, at a rate equal to Three-Month LIBOR, reset quarterly, plus 3.945%, payable
quarterly in arrears on March 30, June 30, September 30 and December 30 of each year through the Stated Maturity Date or earlier redemption date (each, a “
Floati
ng Rate Interest Payment Date
,” and together
with the Fixed Rate Interest Payment Dates, the “
Interest Payment Dates
,” with the period from, and including, March 30, 2022 to, but excluding, the first Floating Rate Interest Payment Date and each successive period from, and
including a Floating Rate Interest Payment Date to, but excluding, the next Floating Rate Interest Payment Date being a “
Floating Rate Period
”). The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed
Rate Period will be computed on the basis of a
360-day
year consisting of twelve
30-day
months up to, but excluding March 30, 2022, and, the amount of interest
payable on any Floating Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a
360-day
year and the number of days actually elapsed. In the event that any scheduled
Interest Payment Date for this Note falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date will be
treated as being made on the date that the payment was first due and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date);
provided
, that in the event that any scheduled Floating Rate
Interest Payment Date falls on a day that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day,
and, in each such case, the amounts payable on such Business Day will include interest accrued to but excluding such Business Day. All percentages used in or resulting from any calculation of Three-Month LIBOR will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%.
Any principal and any such installment of
interest, which is overdue will bear interest at the applicable rate set forth in the previous paragraph (to the extent that the payment of such interest will be legally enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest will be payable on demand.
Interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the person in whose name the Notes are registered for such interest at the close of business on the 15
th
day of the month immediately preceding the applicable
Interest Payment Date, whether or not such day is a Business Day. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice of which will be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or traded, and upon such notice as may be required
by such exchange or automated quotation system, all as more fully provided in such Indenture.
[If a Global Security, insert—Payment
of the principal of and interest on this Note will be made by transfer of immediately available funds to a bank account designated by the Holder in such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.]
[If a Definitive Security, insert—Payment of the principal of and interest on this Note will
be made at the office or agency of the Company maintained for that purpose in the Place of Payment, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided, however
, that payment of interest may be made at the option of the Company through the Paying Agent by United States Dollar check mailed to the addresses of the Persons entitled thereto as such addresses will appear in the Security
Register or by transfer to an account maintained by the payee with a bank in the United States (so long as the applicable Paying Agent has received proper transfer instructions in writing by the Record Date prior to the applicable Interest Payment
Date).]
Reference is made to the further provisions of this Note set forth on the reverse hereof, which further provisions will for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note will not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of this page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Date: .
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INVESTAR HOLDING CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
Date of authentication:
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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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REVERSE OF NOTE
INVESTAR HOLDING CORPORATION
6.00%
Fixed-to-Floating
Rate Subordinated Notes due 2027
This Note is one of a duly authorized issue of Securities of the Company of a series designated as the “6.00%
Fixed-to-Floating
Rate Subordinated Notes due 2027” (the “
Notes
”) initially issued in an aggregate principal amount of
$[ ],000 on March 24, 2017. Such Notes have been established pursuant to, and is one of an indefinite number of series of subordinated debt securities of the Company issued
or issuable under and pursuant to the Indenture, dated as of March 24, 2017 (the “
Base Indenture
”), between the Company and Wilmington Trust, National Association, as Trustee (the “
Trustee
,” which term includes
any successor trustee), as supplemented and amended by the First Supplemental Indenture between the Company and the Trustee, dated as of March 24, 2017 (the “
First Supplemental Indenture
,” and the Base Indenture as supplemented
and amended by the First Supplemental Indenture, the “
Indenture
”), to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Persons in whose names Notes are registered from time to time and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms, conditions and provisions of
the Notes are those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act
”), and those set forth in this Note. To the extent that the terms,
conditions and provisions of this Note modify, supplement or are inconsistent with those of the Indenture, then the terms, conditions and other provisions of this Note will govern to the extent that such terms, conditions and other provisions of
this Note are not inconsistent with the terms, conditions and provisions made part of the Indenture by reference to the Trust Indenture Act.
The Notes are intended to be treated as tier 2 capital (or its then equivalent if the Company were subject to such capital requirement) for
purposes of capital adequacy guidelines of the Board of Governors of the Federal Reserve System (or any successor regulatory authority with jurisdiction over bank holding companies) (the “Federal Reserve”) as then in effect and applicable
to the Company. If an Event of Default with respect to Notes will occur and be continuing, the principal and interest owed on the Notes will only become due and payable in accordance with the terms and conditions set forth in Article V of the Base
Indenture and Sections 3.02(j) and 3.02(m) of the First Supplemental Indenture. Accordingly, the Holder of this Note has no right to accelerate the maturity of this Note in the event that the Company fails to pay interest on any of the Notes, or
fails to perform any other obligations under the Notes or in the Indenture that are applicable to the Notes.
The Company may, at its
option, redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (the “
Redemption Price
”) to but excluding, the date of
redemption (the “
Redemption Date
”), on any Interest Payment Date on or after March 30, 2022. The Company may also, at its option, redeem the Notes before the Stated Maturity Date, in whole, but not in part, at any time, upon
the occurrence of a Tier 2 Capital Event, a Tax Event or a 1940 Act Event. No redemption of the Notes by the Company prior to the Stated Maturity Date will be
made without the prior approval of the Federal Reserve if such prior approval is or will be required at the scheduled Redemption Date. The provisions of Article XI of the Base Indenture and
Section 3.02(f) of the First Supplemental Indenture will apply to the redemption of any Notes by the Company.
The Notes are not entitled
to the benefit of any sinking fund. The Notes are not convertible into or exchangeable for any other equity securities, other securities or other assets of the Company or any Subsidiary of the Company.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Notes of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of not less than the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all series to be affected (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Notes of all affected series (voting as one class), on
behalf of the Holders of all Notes of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture permits, with certain exceptions as therein provided, the Holders of a majority in principal amount of
Notes of any series then Outstanding to waive past defaults under the Indenture with respect to such series and their consequences. Any such consent or waiver by the Holder of this Note will be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note will not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder will have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes,
the Holders of not less than 25% in principal amount of the Notes at the time Outstanding will have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee will not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and will have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing will not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture will, without the consent of the
Holder, alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place(s) and rate, and in the coin or currency, herein prescribed, except for
Section 1.15 of the Base Indenture (which limits interest to the maximum amount permissible by law), the provisions of which are incorporated herein by reference.
[If a Global Security, insert—This Note or portion hereof may not be exchanged for Definitive Securities except in the limited
circumstances provided in the Indenture.
The holders of beneficial interests in this Note will not be entitled to receive physical
delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insert—As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this
Note is registerable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
The
Notes are issuable only in registered form without coupons in minimum denominations of $1,000 and any integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee
nor any such agent will be affected by notice to the contrary.
This Note is subordinated in right of payment to Senior Debt, to the
extent provided in the Indenture.
Obligations of the Company under the Indenture and the Notes thereunder, including this Note, are
payable only out of cash flow and assets of the Company. Each Holder of a Note by its acceptance hereof, will be deemed to have agreed in the Indenture that no director, officer, employee, or shareholder, as such, of the Company, the Trustee, or any
Affiliate of any of the foregoing entities will have any personal liability in respect of the obligations of the Company under the Indenture or such Notes by reason of his, her or its status.
The Indenture contains provisions that relieve the Company from the obligation to comply with certain restrictive covenants in the Indenture
and for satisfaction and discharge at any time of the entire indebtedness upon compliance by the Company with certain conditions set forth in the Indenture.
This Note will be governed by and construed in accordance with the laws of the State of New York.
All capitalized terms used in this Note and not defined herein that are defined in the Indenture will have the meanings assigned to them in
the Indenture. To the extent that any
capitalized term used in this Note and defined herein is also defined in the Indenture but conflicts with the definition provided in the Indenture, the definition of the capitalized term in this
Note will control.
ASSIGNMENT FORM
To assign the within Note, fill in the form below: I or we assign and transfer the within Note to:
(Insert assignee’s legal name)
(Insert
assignee’s social security or Tax I.D. number)
(Print or type
assignee’s name, address and zip code)
and irrevocably appoint the Trustee as agent to transfer this Note on the books of Investar Holding
Corporation. The agent may substitute another to act for it.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Your Name:
Date:
Signature Guarantee:
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ],000. The
following increases or decreases in the principal amount of this Global Note have been made:
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Date
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Amount of decrease
in principal amount
of this Global Note
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Amount of
increase in
principal amount
of this Global Note
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Principal amount
of this Global
Note following
such decrease or
increase
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Signature of
authorized or
signatory of
Trustee
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