UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 26, 2022
SVB Financial Group
(Exact Name of Registrant as Specified In Its Charter)
Delaware | 001-39154 | 91-1962278 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
3003 Tasman Drive Santa Clara, California 95054-1191 |
(Address of principal executive offices) (Zip Code) |
(408) 654-7400
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading |
Name of each exchange | ||
Common Stock, par value $0.001 per share | SIVB | The Nasdaq Stock Market LLC | ||
SIVBP | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01. | Other Events. |
On April 29, 2022, SVB Financial Group issued $350,000,000 aggregate principal amount of its 4.345% Senior Fixed Rate/Floating Rate Notes due 2028 (the “2028 Notes”) and $450,000,000 aggregate principal amount of its 4.570% Senior Fixed Rate/Floating Rate Notes due 2033 (the “2033 Notes” and, together with the 2028 Notes, the “Notes”). The net proceeds from the sale of the Notes, after deducting underwriting discounts and estimated expenses payable, will be approximately $795 million, and is intended to be used for general corporate purposes. The Notes were sold pursuant to an underwriting agreement (the “Underwriting Agreement”) with Goldman Sachs & Co. LLC, BofA Securities, Inc. and Morgan Stanley & Co. LLC, as representatives of the several underwriters listed therein, dated April 26, 2022. The Underwriting Agreement contains various representations, warranties and agreements by SVB Financial Group, conditions to closing, indemnification rights and obligations of the parties thereto and termination provisions. The Notes were issued pursuant to a base indenture, dated September 20, 2010 (the “Base Indenture”), between SVB Financial Group and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as supplemented by a supplemental indenture, dated April 28, 2022 (the “First Supplemental Indenture”), between SVB Financial Group and the Trustee, and an Officers’ Certificate, dated April 29, 2022, authorizing the terms of the Notes (the “Officers’ Certificate”).
The above description of the Underwriting Agreement, the Base Indenture, the First Supplemental Indenture, the Officers’ Certificate and the Notes is qualified in its entirety by reference to the Underwriting Agreement, the Base Indenture, the First Supplemental Indenture, the Officers’ Certificate and the form of 2028 Notes and 2033 Notes, each of which is incorporated herein by reference and attached to this Current Report on Form 8-K as Exhibit 1.1, Exhibit 4.1, Exhibit 4.2, Exhibit 4.3, Exhibit 4.4 and Exhibit 4.5, respectively.
This Current Report on Form 8-K is being filed for the purpose of filing Exhibit 1.1, Exhibit 4.1, Exhibit 4.2, Exhibit 4.3, Exhibit 4.4 and Exhibit 4.5 as exhibits to SVB Financial Group’s registration statement on Form S-3 (File No. 333-234713) (the “Registration Statement”) and such exhibits are hereby incorporated by reference into the Registration Statement.
A copy of the opinion of Sullivan & Cromwell LLP, counsel for SVB Financial Group, relating to the legality of the issuance and sale of the Notes is attached as Exhibit 5.1 to this Current Report on Form 8-K. Exhibits 5.1 and 23.1 of this Current Report on Form 8-K are hereby incorporated by reference into the Registration Statement.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SVB Financial Group (Registrant) | ||||||
Date: April 29, 2022 | By: | /s/ Daniel Beck | ||||
Name: Daniel Beck Title: Chief Financial Officer |
Exhibit 1.1
SVB FINANCIAL GROUP
4.345% Senior Notes due 2028
4.570% Senior Notes due 2033
Underwriting Agreement
April 26, 2022
Goldman Sachs & Co. LLC
BofA Securities, Inc.
Morgan Stanley & Co. LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o | Goldman Sachs & Co. LLC |
200 West Street
New York, New York 10282
c/o | BofA Securities, Inc. |
One Bryant Park
New York, New York 10036
c/o | Morgan Stanley & Co. LLC |
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
SVB Financial Group, a Delaware corporation (the Company), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the Underwriters), for whom you are acting as representatives (the Representatives), $350,000,000 principal amount of its 4.345% Senior Notes due 2028 (the 2028 Notes), and $450,000,000 principal amount of its 4.570% Senior Notes due 2033 (the 2033 Notes and, together with the 2028 Notes, the Securities). The Securities will be issued pursuant to an indenture dated as of September 20, 2010 (the Base Indenture) between the Company and U.S. Bank National Association, as trustee (the Trustee), as supplemented by a supplemental indenture to be dated on or about April 28, 2022 (the Supplemental Indenture and, together with the Base Indenture, the Indenture). Certain terms of the Notes will be established pursuant to one or more officers certificates to be dated as of the Closing Date (as defined below).
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act), a registration statement on Form S-3 (File No. 333-234713), including a prospectus relating to securities (the Shelf Securities), including the Securities, to be issued from time to time by the Company. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the Registration Statement; and, as used herein, the related prospectus covering the Shelf Securities dated November 15, 2019 in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with the confirmation of sales of the Securities is referred to herein as the Basic Prospectus. The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities is hereinafter referred to as the Prospectus and the term Preliminary Prospectus means any preliminary form of the Prospectus. Any reference in this agreement (this Agreement) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following information (collectively with the pricing information set forth on Annex B, the Pricing Disclosure Package): a Preliminary Prospectus dated April 26, 2022, and each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.
Applicable Time means 2:30 P.M., New York City time, on April 26, 2022.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriters name in Schedule 1 hereto at a price equal to 99.650% of the principal amount for the 2028 Notes and 99.550% of the principal amount for the 2033 Notes thereof plus accrued interest, if any, from April 29, 2022 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
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(b) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives at 10:00 A.M. New York City time on April 29, 2022, or at such other time on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment is referred to herein as the Closing Date. A business day means a day other than Saturday or Sunday or other day on which the banking institutions in The City of New York are authorized or required by law or executive order to remain closed.
Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the nominee of The Depository Trust Company (DTC), for the respective accounts of the several Underwriters, of one or more global notes representing such Securities (collectively, the Global Note), with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives electronically or at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
The documents to be delivered at each Closing Date by or on behalf of the parties hereto pursuant to Section 5 hereof, including the cross receipt for the Securities, will be delivered electronically or at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arms length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Representatives and the other Underwriters shall have no responsibility or liability to the Company with respect to such matters. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or any other person.
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3. Representations and Warranties of the Company. The Company represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package, as of the Applicable Time, did not, and at the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof. No statement of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, any Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clause (A) below) an Issuer Free Writing Prospectus) other than (A) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (B) the documents listed on Annex B hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Applicable Time, did not, and at the Closing Date and will not, contain any
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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; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof. Each such Issuer 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 Company notified or notifies the Representatives as described in Section 4(e), 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 deemed to be a part thereof that has not been superseded or modified.
(d) Registration Statement and Prospectus. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Securities has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust Indenture Act), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (A) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (B) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof.
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(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any 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, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The consolidated financial statements included or incorporated by reference in the Registration Statement, Prospectus and Pricing Disclosure Package, together with the supporting schedules, if any, and notes, comply with the applicable requirements of the Exchange Act and present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries at the dates indicated and the statements of income, stockholders equity and cash flows of the Company and its consolidated subsidiaries for the periods specified. Such financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (GAAP) applied on a consistent basis throughout the periods involved except as otherwise stated therein. The other financial information included or incorporated by reference in each of the Registration Statement, Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, Prospectus and the Pricing Disclosure Package fairly presents in all material respects the information called for and is prepared in accordance with the Commissions rules and guidelines applicable thereto. The selected consolidated financial data included in the Registration Statement, Prospectus and Pricing Disclosure Package present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited consolidated financial statements included in the Registration Statement, Prospectus and Pricing Disclosure Package.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration Statement, the Prospectus or the Pricing Disclosure Package, except as otherwise stated therein, (A) there has been no material adverse change or any development that could reasonably be expected to result in a material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a Material Adverse Effect), and (B) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock other than regular dividends on the Companys (v) 5.250% Fixed-Rate Non-Cumulative Perpetual
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Preferred Stock, Series A, liquidation amount of $1,000 per share, (w) Series B Non-Cumulative Perpetual Preferred Stock, liquidation amount of $100,000 per share, (x) Series C Non-Cumulative Perpetual Preferred Stock, liquidation amount of $100,000 per share, (y) Series D Non-Cumulative Perpetual Preferred Stock, liquidation amount of $100,000 per share or (z) Series E Non-Cumulative Perpetual Preferred Stock, liquidation amount of $100,000 per share.
(h) Organization and Good Standing. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, Prospectus and Pricing Disclosure Package 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 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 qualify or to be in good standing would not result in a Material Adverse Effect. The Company is duly registered as a bank holding company and has validly elected to be treated as a financial holding company under the Bank Holding Company Act of 1956, as amended.
(i) Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement, Prospectus and Pricing Disclosure Package as of the date disclosed therein, and the capital stock of the Company conforms as to legal matters in all material respects to the description thereof.
(j) Stock Options. Except as would not reasonably be expected to have a Material Adverse Effect, with respect to the stock options (the Stock Options) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries (the Company Stock Plans), (A) each Stock Option intended to qualify as an incentive stock option under Section 422 of the Code so qualifies, (B) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the Grant Date) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, (C) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of the Nasdaq Global Select Market and any other exchange on which Company securities are traded, (D) the per share exercise price of each Stock Option was equal to the fair market value of a share of the Companys common stock, par value $0.001 per share, on the applicable Grant Date and (E) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Companys filings with the Commission in accordance with the Exchange Act and all other applicable laws. Except in accordance with the terms of its insider trading policy, the Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
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(k) Due Authorization. The Company has full right, power and authority to execute and deliver this Agreement and the Securities and to perform its obligations under this Agreement, the Securities and the Indenture; and all action required to be taken for the due and proper authorization, execution and delivery by it of each of this Agreement and the Securities and the consummation by it of the transactions contemplated hereby, thereby or by the Pricing Disclosure Package and the Prospectus has been duly and validly taken.
(l) The Indenture. The Base Indenture 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 enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors rights generally or by equitable principles relating to enforceability, including principles of commercial reasonableness, good faith and fair dealing (collectively, the Enforceability Exceptions). The Supplemental Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Indenture, upon effectiveness of the Registration Statement and on the Closing Date, was and will have been duly qualified under the Trust Indenture Act, respectively.
(m) The Securities. The Securities to be issued and sold by the Company hereunder have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(n) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(o) Descriptions of the Securities and the Indenture. The Securities and the Indenture conform in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) No Violation or Default. Neither the Company nor any of its subsidiaries is (x) in violation of its charter or by-laws (or equivalent documents) or (y) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject, except in the case of clause (y), for such defaults that would not result in a Material Adverse Effect or have a material adverse effect on the consummation of the transactions contemplated hereby. The execution, delivery and performance by the Company of each of this Agreement, the Indenture and the Securities
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(collectively, the Transaction Documents), the issuance and sale of the Securities, the consummation of the transactions contemplated by the Transaction Documents and in the Registration Statement, Prospectus and Pricing Disclosure Package and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any U.S. Federal or state statute, any rule, regulation or order of any governmental agency or body or of any national securities exchange, or any U.S. Federal or state court having jurisdiction over the Company or any Significant Subsidiaries (defined below) of the Company or any of their respective properties, (B) any agreement or instrument to which the Company or any such Significant Subsidiary is a party or by which the Company or any such Significant Subsidiary is bound or to which any of the properties of the Company or any such Significant Subsidiary is subject, or (C) the charter or by-laws of the Company or any such Significant Subsidiary, except, in the case of clauses (A) and (B) above, for such breaches, violations or defaults that do not and would not have, individually or in the aggregate, a Material Adverse Effect.
(q) Certain Disclosures. The statements relating to the Securities and Transaction Documents included in the Pricing Disclosure Package and the Prospectus under the captions Description of Notes, Description of Debt Securities, and Underwriting (Conflicts of Interest), insofar as they constitute summaries of the Securities and the Indenture, fairly summarize in all material respects the terms of the Securities and Indenture.
(r) No Consents Required. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any U.S. Federal or state court or governmental agency or body, or of any national securities exchange, is required for the authorization, execution and delivery by the Company of each of the Transaction Documents or the performance by the Company of its obligations under the Transaction Documents including the offering, issuance, sale and delivery of the Securities or the consummation by the Company of the transactions contemplated by the Transaction Documents, except as such as have already been made or obtained, or will be made or obtained prior to the Closing Date, or as may be required under the blue sky or securities laws of the various states.
(s) Legal Proceedings. Other than as set forth in the Registration Statement, Prospectus and Pricing Disclosure Package, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign (each, a Proceeding), now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which (A) could reasonably be expected to result in a Material Adverse Effect or (B) could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no Proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and are not so described in all material respects.
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(t) Independent Accountants. KPMG LLP, who have audited the consolidated financial statements of the Company and its subsidiaries included in the Registration Statement, Prospectus and Pricing Disclosure Package, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(u) Title to Real and Personal Property. Except as disclosed in the Registration Statement, Prospectus and Pricing Disclosure Package, the Company and its Significant Subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, except for liens, encumbrances and defects that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Registration Statement, Prospectus and Pricing Disclosure Package, the Company and its Significant Subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) Title to Intellectual Property. The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and trade names necessary to carry on their businesses as presently conducted and the Company and its subsidiaries have not received any notice of infringement of or conflict with asserted rights of others with respect to any patents, patent licenses, trademarks, service marks or trade names that, in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(w) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers or other affiliates of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in the Registration Statement and the Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(x) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an investment company or an entity controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the Investment Company Act).
(y) Taxes. The Company and its subsidiaries have filed all U.S. Federal, state, local and foreign tax returns or reports required to be filed, and have paid in full all taxes indicated by said returns or reports and all assessments received by it or any of them to the extent that such taxes have become due and payable, except where the Company and its subsidiaries are contesting in good faith such taxes and assessments and except where the failure to so file or pay would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
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(z) Licenses and Permits. The Company and its subsidiaries possess adequate certificates, authorizations or permits issued by appropriate U.S. Federal or state or other governmental agencies or bodies necessary to conduct the business now operated by them in all material respects or contemplated in connection with the sale of the Securities, and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(aa) No Labor Disputes. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of the principal suppliers, manufacturers, customers or contractors of the Company or any of its subsidiaries, which, in either case, would result in a Material Adverse Effect.
(bb) Compliance With Environmental Laws. The Company and its subsidiaries are (A) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (Environmental Laws), (B) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not have a Material Adverse Effect.
(cc) Compliance With ERISA. The Company is in compliance with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect.
(dd) Disclosure Controls. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act). Such disclosure controls and procedures (A) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Companys principal executive officer and its principal financial officer by others within those entities, (B) have been evaluated for effectiveness as of the end of the annual or quarterly period reported to the Commission and (C) are effective to perform the functions for which they were established. In addition, prior to the filing of the Companys Annual Report on Form 10-K for the year ended December 31, 2021, each of the Companys auditors and the Audit Committee of the Companys Board of Directors had been advised of (x) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Companys ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal
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control over financial reporting; and, since such date, except as disclosed to the Representatives, neither the Companys auditors nor the Audit Committee of the Companys Board of Directors have been advised of any such significant deficiencies and material weaknesses or fraud. Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls over financial reporting or in other factors that could significantly and adversely affect internal controls over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses.
(ee) Accounting Controls. The Company maintains a system of internal control over financial reporting sufficient to provide reasonable assurance that (A) transactions are executed in accordance with managements general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted only in accordance with the managements general or specific authorization, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(ff) Insurance. The Company and its Significant Subsidiary maintain insurance of the types and in the amounts generally deemed adequate by them in their respective businesses and as required by the rules and regulations of all governmental agencies having jurisdiction over the Company or the Bank (defined below), all of which insurance is in full force and effect, except as would not be expected to be material to the Company and the Bank, taken as a whole.
(gg) No Unlawful Payments. Neither the Company nor its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has, directly or indirectly, at any time during the past five years (A) made any unlawful contribution to any candidate for public office, or failed to disclose fully any contribution in violation of law, (B) made any payment to any U.S. Federal or state governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the laws of the United States or any jurisdiction thereof, (C) taken or is aware of any action that would result in a violation by such persons of the FCPA (as defined below), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith, or (D) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law.
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The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws. FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(hh) Compliance with Money Laundering Laws. 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, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, 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 any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(ii) Compliance with Sanctions Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) or the U.S. Department of State and including, without limitation, the designation as a specially designated national or blocked person), the United Nations Security Council (UNSC), the European Union, Her Majestys Treasury (HMT) or other relevant sanctions authority (collectively, Sanctions), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, currently Cuba, Iran, North Korea, Syria, the Crimea Region of Ukraine, the so-called Donetsk Peoples Republic, the so-called Luhansk Peoples Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 (each, a Sanctioned Country); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions, or in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(jj) No Restrictions on Subsidiaries. Except for such prohibitions that would not be material to the Company and its subsidiaries taken as a whole or restrictions under law applicable to bank holding companies and their subsidiaries generally, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiarys capital stock or similar ownership interests, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiarys properties or assets to the Company or any other subsidiary of the Company.
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(kk) No Brokers Fees. Except as disclosed in the Registration Statement, Prospectus and Pricing Disclosure Package, 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 Underwriters for a brokerage commission, finders fee or other like payment for the offer and sale of the Securities as contemplated by this Agreement.
(ll) No Registration Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(mm) No Stabilization. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in the unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(nn) Margin Rules. None of the Company, any of the Companys subsidiaries or any agent thereof acting on behalf of them has taken, and none of them will take, any action that could reasonably be expected to cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(oo) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Companys directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(pp) Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendments thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and at the date hereof, the Company was not and is not an ineligible issuer, and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fees within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(qq) Significant Subsidiary. Silicon Valley Bank (the Bank) is the only significant subsidiary of the Company (as such term is defined in Rule 1-02(w) of Regulation S-X) (the Significant Subsidiary). The Significant Subsidiary has corporate power and authority to own,
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lease and operate its properties and to conduct its business as described in the Registration Statement, Prospectus and Pricing Disclosure Package and is duly qualified as a foreign corporation 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 where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. The Bank has been duly organized and is a state-chartered bank, validly existing and in good standing under the laws of the State of California, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. 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 qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, Prospectus and Pricing Disclosure Package, all of the issued and outstanding capital stock of the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, and none of the outstanding shares of capital stock of the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of the Significant Subsidiary.
(rr) Compliance with Banking Laws. The Company, the Bank and, to the knowledge of the Company, the Companys other subsidiaries are in compliance in all material respects with all laws administered by and regulations of any federal or state bank regulatory authority applicable to it or to them (including, without limitation, all regulations and orders of, or agreements with, any Regulatory Agency (as defined below) and the Consumer Financial Protection Bureau, 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 U.S.A. Patriot Act), except where the failure to be in compliance would not result in a Material Adverse Effect. The Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (the FDIC) and the California Department of Business Oversight (each a Regulatory Agency) are the principal regulators of the Company and the Bank. The Company is not subject to any order of any Regulatory Agency which prohibits the payment of dividends by any of its subsidiaries.
(ss) FDIC Status. The Bank is an insured bank under the provisions of the Federal Deposit Insurance Act, as amended, and is a member of the Federal Reserve System. The deposit accounts of the Bank are insured up to the applicable limits by the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation or termination of such insurance is pending or, to the knowledge of the Company, threatened.
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(tt) Cybersecurity; Data Protection. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all of the Companys and its subsidiaries information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, IT Systems) and all data (including all personal, personally identifiable, sensitive, confidential or regulated data (Personal Data) used in connection with their businesses and there have been no breaches, violations, outages or unauthorized uses of or accesses to same that would cause or would reasonably be expected to cause a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
4. Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required Filings. The Company: (i) will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act; (ii) will file any Issuer Free Writing Prospectus (including the term sheet substantially in the form of Schedule 2 hereto) to the extent required by Rule 433 under the Securities Act; (iii) will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and during the Prospectus Delivery Period (as defined below); and (iv) will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date. As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives, one signed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period, as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request.
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(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement to the Registration Statement effected solely by virtue of the Company making a filing under the Exchange Act or (y) the filing of prospectuses, preliminary prospectuses, preliminary prospectus supplements, issuer free-writing prospectuses and other documents pursuant to Rule 424(b) or Rule 433 under the Securities Act, in each case of clauses (x) and (y) which is unrelated to the Securities, the offering thereof or the Prospectus), whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing: (i) when any amendment to the Registration Statement has been filed or becomes effective (other than any amendment to the Registration Statement effected solely by virtue of the Company making a filing under the Exchange Act which is unrelated to the Securities, the offering thereof or the Prospectus); (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information relating to the offering of the Securities; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
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(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date: (i) any event shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any 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 existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and the Representatives by filing its Annual Report on Form 10-K and Quarterly Reports on Form 10-Q on a timely basis pursuant to the Commissions Electronic Data Gathering, Analysis, and Retrieval filing system an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date (as defined in Rule 158) of the Registration Statement.
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(h) Clear Market. During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities (other than the Securities) issued or guaranteed by the Company and having a tenor of more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading Use of Proceeds.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(k) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(l) DTC. The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(m) Eligibility of Automatic Shelf Registration Statement Form. If at any time when Securities remain unsold by the Underwriters the Company receives a notice from the Commission pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form or the Registration Statement during the Prospectus Delivery Period, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to such Securities, in a form and substance reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the Registration Statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
5. Conditions of Underwriters Obligations. The obligation of each Underwriter to purchase the Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by
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the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, if the Securities or any other debt securities or preferred stock of, or guaranteed by, the Company or any of its subsidiaries are rated by a nationally recognized statistical rating organization, as such term is defined under Section 3(a)(62) under the Exchange Act, (i) no downgrading shall have occurred in the rating accorded to the Securities or any other such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or any other such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change and Officers Certificates. At the Closing Date, there shall not have been, in the judgment of the Representatives, since the date hereof or since the respective dates as of which information is given in the Registration Statement, Prospectus and Pricing Disclosure Package, any material adverse change or any development that could reasonably be expected to result in a material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive Officer, President or an executive officer of the Company and of the Chief Financial Officer of the Company, in their capacities as such, dated as of the Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company herein are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (iii) the Company has complied with all agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing Date.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date, KPMG LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration
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Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a cut-off date no more than two business days prior to such Closing Date.
(f) Opinions and Disclosure Letter of Counsel for the Company. Sullivan & Cromwell LLP, counsel for the Company shall have furnished to the Representatives, at the request of the Company, their written opinion and disclosure letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A-1 and A-2 hereto.
(g) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(i) Good Standing. The Representatives shall have received on and as of the Closing Date (i) satisfactory evidence of the good standing of the Company and the Bank in their respective jurisdictions of organization and (ii) their good standing as foreign entities in such other jurisdictions as the Representatives may reasonably request, in each case of clauses (i) and (ii) in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(j) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(k) The Securities. The Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(l) CFO Certificate. On the Closing Date, the Chief Financial Officer of the Company shall have furnished a certificate covering certain financial data included or incorporated by reference in the Prospectus, in form and substance reasonably satisfactory to the Representatives.
(m) Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
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All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d), any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended) or in any materials or information provided to investors by, or with the written approval of, the Company in connection with the marketing of the offering of the Securities, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) (collectively, Marketing Materials), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d), any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended) or in any Marketing Materials, it being understood and agreed upon that the only such
22
information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph under the caption Underwriting (Conflicts of Interest) and the information regarding market-making contained in the seventh paragraph under the caption Underwriting (Conflicts of Interest).
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the Indemnified Person) shall promptly notify the person against whom such indemnification may be sought (the Indemnifying Person) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such proceeding and any others entitled to indemnification pursuant to this Section 6 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse
23
the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company, on the one hand, and the Underwriters, on the other, 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 or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 6, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total
24
underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 6 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
8. Termination. The Representatives may terminate this Agreement at any time at or prior to the Closing Date (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, any material adverse change or any development that could reasonably be expected to result in a material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Global Select Market, or if trading generally on the New York Stock Exchange or in the Nasdaq Global Select Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the Financial Industry Regulatory Authority, Inc. (FINRA) or any other governmental authority, (iv) a material disruption has occurred in commercial banking or securities or clearance, settlement or trading services in the United States, or (v) if a banking moratorium has been declared by Federal, New York or California authorities.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to
25
procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days (or longer if mutually agreed between the Company and the non-defaulting Underwriters) in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Securities that remains unpurchased on the Closing Date does not exceed one-eleventh of the aggregate principal amount of Securities to be purchased on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder on such date plus such Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Securities that remains unpurchased on the Closing Date exceeds one-eleventh of the aggregate principal amount of Securities to be purchased on such date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, any Preliminary Prospectus, any
26
Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Companys counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by FINRA and the approval of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection with any road show presentation to potential investors.
(b) If (i) this Agreement is terminated by the Representatives in accordance with the provisions of Section 8 hereof, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company shall reimburse the Underwriters for all of their reasonable out of pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 6 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities Act; (b) the term business day means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in Rule 405 under the Securities Act.
14. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
27
15. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 15:
BHC Act Affiliate has the meaning assigned to the term affiliate in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
Covered Entity means any of the following:
(i) a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
U.S. Special Resolution Regime means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
16. Miscellaneous. (a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives: c/o
28
Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attn: Registration Department; c/o BofA Securities, Inc., 1540 Broadway, NY8-540-26-02, New York, New York 10036, Fax: (646) 855-5958, Attn: High Grade Transaction Management/Legal; and c/o Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036, Fax: (212) 507-8999), Attn: Investment Banking Division. Notices to the Company shall be given to it at 3003 Tasman Drive, Santa Clara, California, attention of Chief Financial Officer, with a copy to Sullivan & Cromwell LLP, attention of Jared M. Fishman.
(c) Governing Law. This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original or an electronic signature and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(e) Amendments or Waivers. 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.
(f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
29
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, | ||
SVB FINANCIAL GROUP | ||
By: | /s/ Daniel Beck | |
Name: Daniel Beck | ||
Title: Chief Financial Officer |
[Signature Page Underwriting Agreement]
Accepted as of the date hereof for itself and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||
GOLDMAN SACHS & CO. LLC | ||
By: | /s/ Ali Malik | |
Name: Ali Malik | ||
Title: Managing Director | ||
BOFA SECURITIES, INC. | ||
By: |
| |
Name: | ||
Title: | ||
MORGAN STANLEY & CO. LLC | ||
By: |
| |
Name: | ||
Title: |
[Signature Page Underwriting Agreement]
Accepted as of the date hereof for itself and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||
GOLDMAN SACHS & CO. LLC | ||
By: |
| |
Name: | ||
Title: | ||
BOFA SECURITIES, INC. | ||
By: | /s/ Anthony Aceto | |
Name: Anthony Aceto | ||
Title: Managing Director | ||
MORGAN STANLEY & CO. LLC | ||
By: |
| |
Name: | ||
Title: |
[Signature Page Underwriting Agreement]
Accepted as of the date hereof for itself and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||
GOLDMAN SACHS & CO. LLC | ||
By: |
| |
Name: | ||
Title: | ||
BOFA SECURITIES, INC. | ||
By: |
| |
Name: | ||
Title: | ||
MORGAN STANLEY & CO. LLC | ||
By: | /s/ Hector Vazquez | |
Name: Hector Vazquez | ||
Title: Executive Director |
[Signature Page Underwriting Agreement]
Schedule 1 Underwriter Goldman Sachs & Co. LLC BofA Securities, Inc Morgan Stanley & Co. LLC SVB Securities LLC Total
Principal
Amount of
2028 Notes
Principal
Amount of
2033 Notes
$
110,834,000
$
142,500,000
$
110,833,000
$
142,500,000
$
110,833,000
$
142,500,000
$
17,500,000
$
22,500,000
$
350,000,000
$
450,000,000
Schedule 2
PRICING TERM SHEET
Filed pursuant to Rule 433
Registration No. 333-234713
Issuer Free Writing Prospectus dated April 26, 2022
Relating to Preliminary Prospectus Supplement dated April 26, 2022
Pricing Term Sheet
$350,000,000 4.345% Senior Fixed Rate/Floating Rate Notes due 2028
$450,000,000 4.570% Senior Fixed Rate/Floating Rate Notes due 2033
Issuer: | SVB Financial Group | |
Securities: | $350,000,000 4.345% Senior Fixed Rate/Floating Rate Notes due 2028 (the Senior Notes due 2028) | |
$450,000,000 4.570% Senior Fixed Rate/Floating Rate Notes due 2033 (the Senior Notes due 2033) | ||
Ranking: | Senior Notes | |
Principal Amount: | $350,000,000 for the Senior Notes due 2028 | |
$450,000,000 for the Senior Notes due 2033 | ||
Coupon: | Senior Notes due 2028 | |
Fixed Rate Period: 4.345% per annum | ||
Floating Rate Period: Compounded SOFR determined as set forth under Description of the Notes Interest in the preliminary prospectus supplement dated April 26, 2022, plus 1.713% | ||
Senior Notes due 2033 | ||
Fixed Rate Period: 4.570% per annum | ||
Floating Rate Period: Compounded SOFR determined as set forth under Description of the Notes Interest in the preliminary prospectus supplement dated April 26, 2022, plus 1.967% |
2
3
4
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision
or withdrawal at any time. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the second business day prior to
the delivery of the notes hereunder may be required, by virtue of the fact that the notes initially will settle on the third business day following the pricing date (T+3), to specify an alternate settlement arrangement at the time of any such trade
to prevent a failed settlement. Purchasers of the notes who wish to trade the notes prior to the second business day prior to their date of delivery hereunder should consult their advisors. The issuer has filed a registration statement including a prospectus and a preliminary prospectus supplement with the SEC for the offering
to which this communication relates. Before you invest, you should read the prospectus and preliminary prospectus supplement in that registration statement and the other documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may obtain these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the
prospectus, the preliminary prospectus supplement and, when available, the final prospectus supplement if you request them by calling Goldman Sachs & Co. LLC at 1-212-902-1171, BofA Securities, Inc. at 1-800-294-1322 (toll-free) or Morgan
Stanley & Co. LLC at 1-866-718-1649. Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers
or other notices were automatically generated as a result of this communication being sent via Bloomberg or another email system. 5
Annex A-1 FORM OF OPINION OF COMPANY COUNSEL [●], 2022 Goldman Sachs & Co.
LLC 200 West Street New
York, New York 10282 BofA Securities, Inc. One Bryant Park New York, New
York 10036 Morgan Stanley & Co. LLC 1585 Broadway New York, New York
10036 As Representatives of the Several Underwriters Ladies and Gentlemen: In connection with the
several purchases today by you and the other Underwriters named in Schedule 1 to the Underwriting Agreement, dated April 26, 2022 (the Underwriting Agreement), between SVB Financial Group, a Delaware corporation (the
Company), and you, as Representatives of the several Underwriters named therein (the Underwriters), of $[●] principal amount of the Companys [●]% Senior Notes due 2028 (the 2028 Notes) and
$[●] principal amount of the Companys [●]% Senior Notes due 2033 (the 2033 Notes and, together with the 2028 Notes, the Securities) issued pursuant to the Indenture, dated as of September 20, 2010, as
supplemented by the First Supplemental Indenture, dated as of April 29, 2022 (as so supplemented, the Indenture), between the Company and U.S. Bank National Association, as Trustee (the Trustee), we, as counsel for the
Company, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, it is our opinion that:
(1) The Company is an existing corporation in good standing under the laws of the State of
Delaware. (2) The Indenture has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act of 1939; the Securities have been duly authorized, executed, authenticated, issued and delivered by the Company; and the Indenture and the A-1-1
Securities 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. (3) All regulatory consents, authorizations, approvals and filings required to be obtained or made by
the Company under the Covered Laws for the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement have been obtained or made. (4) The issuance of the Securities and the sale and delivery of the Securities by the Company to the
Underwriters in accordance with the Underwriting Agreement does not violate any Covered Laws. (5) The issuance of the Securities and the sale and delivery of the Securities by the Company to the
Underwriters in accordance with the Underwriting Agreement does not, (a) violate the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, in each case as in effect on the date hereof, or
(b) result in a default under or breach or violation of the agreements listed on Annex A to this opinion. (6) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (7) The Company is not and, after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus Supplement dated April 26, 2022, relating to the Securities, would not be on the date hereof an investment company as defined in the Investment Company Act of 1940. (8) All regulatory consents, authorizations, approvals and filings required to be obtained or made by
the Company under the Bank Holding Company Act of 1956, as amended, or by Silicon Valley Bank, a wholly owned subsidiary of the Company, under the Federal Deposit Insurance Act, as amended, including in each case the regulations adopted thereunder
by the Board of Governors of the Federal Reserve System or the Federal Deposit Insurance Corporation, as applicable (collectively, the Banking Laws), for the execution and delivery by the Company of, and the performance by the Company of
its obligations under, the Underwriting Agreement have been obtained or made. In connection with our opinion set forth in paragraph
(1) above, we have relied solely on a good standing certificate for the Company issued by the Secretary of State of the State of Delaware and we have assumed that the Company has been duly incorporated. For purposes of the opinions in paragraphs (3) and (4) above, Covered Laws means the Federal laws of the United States, the
General Corporation Law of the State of Delaware, and the statutory laws of the State of New York (including the published rules and regulations thereunder) that in our experience normally are applicable to general business corporations and the
issuance, sale and delivery of the Securities; provided, however, that such term does not include Federal or state securities laws, antifraud laws or fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of
1974, antitrust laws or any law that is applicable to the Company, the Securities or the issuance, sale or delivery thereof solely as part of a regulatory regime applicable to the Company or its affiliates due to its or their status, business or
assets. A-1-2
We express no opinion in paragraph (8) above with respect to provisions of the Banking
Laws as to safety and soundness, unsafe and unsound practices or requirements of a prudential nature applicable thereunder, and we express no opinion on whether any purchaser may be required to file any application or notice under any Banking Law or
other law. Insofar as performance by the Company of its obligations under the Underwriting Agreement is concerned, we express no opinion in paragraph (8) above as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors rights, including, without limitation, the depositary institutions conservatorship and receivership related provisions of the Banking Laws, as applicable. The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. We have also relied as
to certain matters upon information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee,
that the Securities conform to the specimens thereof examined by us, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified. This opinion is furnished by us, as counsel to the Company, to you, as Representatives of the Underwriters, solely for the benefit of the
Underwriters in their capacity as such, and may not be relied upon by any other person. This opinion may not be quoted, referred to or furnished to any purchaser or prospective purchaser of the Securities and may not be used in furtherance of any
offer or sale of the Securities. A-1-3
Annex A Office Lease Agreement between Silicon Valley Bank, as Tenant, and CA-Lake Marriott Business Park Limited
Partnership, as Landlord, dated as of September 15, 2004. Indenture, dated September 20, 2010, by and between SVB Financial Group and U.S. Bank National Association, as
trustee. Officers Certificate, dated as of January 29, 2015, relating to the 3.50% Senior Note Due 2025.
Officers Certificate, dated as of June 8, 2020, relating to the 3.125% Senior Notes Due 2030.
Officers Certificate, dated as of February 2, 2021, relating to the 1.800% Senior Notes Due 2031.
Officers Certificate, dated as of May 13, 2021, relating to the 2.100% Senior Notes Due 2028.
Agreement and Plan of Merger, dated as of January 4, 2021, by and between SVB Financial Group and Boston
Private Financial Holdings, Inc. Officers Certificate, dated as of October 28, 2021, relating to the 1.800% Senior Notes due 2026.
A-1-4
Annex A-2 FORM OF DISCLOSURE LETTER OF COMPANY COUNSEL [●], 2022 Goldman Sachs & Co. LLC
200 West Street New York,
New York 10282 BofA Securities, Inc. One
Bryant Park New York, New York 10036 Morgan Stanley & Co. LLC 1585 Broadway
New York, New York 10036 As Representatives of the Several Underwriters Ladies and Gentlemen: This is with reference
to the registration under the Securities Act of 1933 (the Securities Act) and offering of $[●] aggregate principal amount of [●]% Senior Notes due 2028 (the 2028 Notes) and $[●] aggregate principal amount of
[●]% Senior Notes due 2033 (the 2033 Notes and, together with the 2028 Notes, the Securities) of SVB Financial Group, a Delaware corporation (the Company). The Registration Statement relating to the Securities (File No. 333-234713) was filed on Form S-3 in accordance with the procedures of the Securities and Exchange Commission (the Commission) permitting a delayed or continuous offering of securities pursuant thereto and, if appropriate, a
post-effective amendment, document incorporated by reference therein or prospectus supplement that provides information relating to the terms of the securities and the manner of their distribution. The Securities have been offered by the Prospectus,
dated November 15, 2019 (the Basic Prospectus), A-2-1
as supplemented by the Prospectus Supplement, dated April 26, 2022 (the Prospectus Supplement), which updates or supplements certain information contained in the Basic Prospectus. The
Basic Prospectus, as supplemented by the Prospectus Supplement, does not necessarily contain a current description of the Companys business and affairs since it provides information as of its date and, pursuant to Form S-3, it incorporates by reference certain documents filed with the Commission that contain information as of various dates. As counsel to the Company, we reviewed the Registration Statement, the Basic Prospectus, the Prospectus Supplement and the documents listed in
Schedule A (those listed documents, taken together with the Basic Prospectus, being referred to herein as the Pricing Disclosure Package), and participated in discussions with your representatives and those of the Company and its
accountants. Between the date of the Prospectus Supplement and the time of delivery of this letter, we participated in further discussions with your representatives and those of the Company and its accountants, concerning certain matters relating to
the Company and reviewed certificates of certain officers of the Company and letters addressed to you from the Companys accountants. On the basis of the information that we gained in the course of the performance of the services referred to
above, considered in the light of our understanding of the applicable law (including the requirements of Form S-3 and the character of the prospectus contemplated thereby) and the experience we have gained
through our practice under the Securities Act, we confirm to you that, in our opinion, the Registration Statement, as of the date of the Prospectus Supplement, and the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of
the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act and the applicable rules and regulations of the
Commission thereunder. Also, we confirm to you that the statements contained in the Prospectus Supplement under the caption Description of Notes and in the Basic Prospectus under the caption Description of Debt Securities,
insofar as they relate to provisions of the Securities and the Indenture under which the Securities are being issued, the statements contained in the Prospectus Supplement under the caption Underwriting (Conflicts of Interest), insofar
as they relate to the provisions of the Underwriting Agreement between the Company and the Underwriters therein described, and the statements contained in the Prospectus Supplement under the captions Material United States Federal Income Tax
Consequences and Certain ERISA Considerations, insofar as they purport to constitute a summary of provisions of U.S. federal income tax law or the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or
legal conclusions with respect thereto, constitute a fair and accurate summary of such provisions in all material respects, subject to the limitations set forth therein. A-2-2
Further, nothing that came to our attention in the course of such review has caused us to
believe that, insofar as relevant to the offering of the Securities, (a) the Registration
Statement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (b) the Pricing Disclosure Package, as of [●] P.M. on [●], 2022 (which you have informed us
is prior to the time of the first sale of the Securities by any Underwriter) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (c) the Basic Prospectus, as supplemented by the
Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. We also advise you that nothing that came to our attention in the course of the procedures described in the second
sentence of the preceding paragraph has caused us to believe that, insofar as relevant to the offering of the Securities, the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the time of delivery of this letter, contained any
untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure
Package, except to the extent specifically noted in the last sentence of the second preceding paragraph. Also, we do not express any opinion or belief as to the financial statements or other financial data derived from accounting records contained
in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, A-2-3
as to managements report of its assessment of the effectiveness of the Companys internal control over financial reporting or the auditors report as to the Companys
internal control over financial reporting, each as included in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility of the Trustee under the
Indenture under which the Securities are being issued. This letter is furnished by us, as counsel to the Company, to you, as
Representatives of the several Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may not be relied upon by any other person. This letter may not be quoted, referred to or furnished to any purchaser or
prospective purchaser of the Securities and may not be used in furtherance of any offer or sale of the Securities. Very truly yours, A-2-4
Schedule A Preliminary Prospectus Supplement, Subject to Completion, dated April 26, 2022 to Basic Prospectus, dated
November 15, 2019. Pricing Term Sheet, dated April 26, 2022. A-2-5
Annex B Pricing Disclosure Package Preliminary Prospectus dated
April 26, 2022 Issuer Free Writing Prospectus attached to this Agreement as Schedule 2 A-2-6
Price to Public:
100.000% of face amount, plus accrued interest, if any, from April 29, 2022 for the Senior Notes due 2028
100.000% of face amount, plus accrued interest, if any, from April 29, 2022 for the Senior Notes due 2033
Expected Ratings:
A3 (S) / BBB (Pos) (Moodys / S&P)(*)
Pricing Date:
April 26, 2022
Settlement Date:
April 29, 2022 (T+3)(**)
Maturity Date:
April 29, 2028 for the Senior Notes due 2028 (the 2028 Maturity Date)
April 29, 2033 for the Senior Notes due 2033 (the 2033 Maturity Date)
Fixed Rate Period:
From, and including, April 29, 2022 to, but excluding, April 29, 2027 for the Senior Notes due 2028
From, and including, April 29, 2022 to, but excluding, April 29, 2032 for the Senior Notes due 2033
Floating Rate Period:
From, and including, April 29, 2027 to, but excluding, the 2028 Maturity Date
From, and including, April 29, 2032 to, but excluding, the 2033 Maturity Date
Interest Payment Frequency:
Fixed Rate Period: Semi-Annually
Floating Rate Period: Quarterly
Interest Payment Dates:
Senior Notes due 2028
Fixed Rate Period: Every April 29, and October 29, commencing on October 29, 2022 and ending on April 29, 2027
Floating Rate Period: July 29, 2027, October 29, 2027, January 29, 2028 and the 2028 Maturity Date
Senior Notes due 2033
Fixed Rate Period: Every April 29 and October 29, commencing on October 29, 2022 and ending on April 29, 2032
Floating Rate Period: July 29, 2032, October 29, 2032, January 29, 2033 and the 2033 Maturity Date
Day Count Convention:
Fixed Rate Period: 30/360
Floating Rate Period: Actual/360
Denominations:
$2,000 and integral multiples of $1,000 in excess thereof
Reference Benchmark:
2.500% US Treasury due March 31, 2027 for the Senior Notes due 2028
1.875% US Treasury due February 15, 2032 for the Senior Notes due 2033
Benchmark Price / Yield:
98-203⁄4 / 2.795% for the Senior Notes due 2028
92-11+ / 2.770% for the Senior Notes due 2033
Spread to Benchmark:
+155 basis points for the Senior Notes due 2028
+180 basis points for the Senior Notes due 2033
Optional Redemption:
Senior Notes due 2028:
The Senior Notes due 2028 will be redeemable in whole, but not in part, by the Issuer on April 29, 2027, the date that is one year prior to the 2028 Maturity Date, at a redemption price equal to 100% of the principal amount
of the Senior Notes due 2028, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
In addition, the Senior Notes due 2028 will be redeemable, in whole or in part, by the Issuer on or after the 30th day prior to the 2028 Maturity Date at a redemption price equal to 100% of the principal amount of the Senior
Notes due 2028 being redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
Senior Notes due 2033:
The Senior Notes due 2033 will be redeemable in whole, but not in part, by the Issuer on April 29, 2032, the date that is one year prior to the 2033 Maturity Date, at a redemption price equal to 100% of the principal amount
of the Senior Notes due 2033, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
In addition, the Senior Notes due 2033 will be redeemable, in whole or in part, by the Issuer on or after the 90th day prior to the 2033 Maturity Date at a redemption price equal to 100% of the principal amount of the Senior
Notes due 2033 being redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
CUSIP / ISIN:
78486Q AR2 / US78486QAR20 for the Senior Notes due 2028
78486Q AS0 / US78486QAS03 for the Senior Notes due 2033
Joint Book-Running Managers:
Goldman Sachs & Co. LLC
BofA Securities, Inc.
Morgan Stanley & Co. LLC
Co-Manager:
SVB Securities LLC
*
**
Very truly yours,
1.
2.
3.
4.
5.
6.
7.
8.
1.
2.
Exhibit 4.2
EXECUTION VERSION
SVB FINANCIAL
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 28, 2022
to
INDENTURE
Dated as of September 20, 2010
FIRST SUPPLEMENTAL INDENTURE (this First Supplemental Indenture), dated as of April 28, 2022, between SVB Financial Group, a Delaware corporation (the Company), and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as Trustee (the Trustee).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of September 20, 2010 (the Existing Indenture and as supplemented and amended by this First Supplemental Indenture, the Indenture) providing for the issuance by the Company from time to time of its senior debt securities in one or more series (the Securities);
WHEREAS, Section 9.01(e) of the Existing Indenture provides that the Company (when authorized by a Board Resolution) and the Trustee may, without the consent of any Holders, enter into indentures supplemental to the Existing Indenture to add, change or eliminate any of the provisions of the Existing Indenture when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision and such addition, change or elimination does not modify the rights of any Security Outstanding;
WHEREAS, any addition, change to or elimination of any provision of the Existing Indenture pursuant to this First Supplemental Indenture shall not apply to any Security Outstanding prior to the execution of this First Supplemental Indenture, and each Security Outstanding prior to the execution of this First Supplemental Indenture shall continue to be entitled to the benefit of the provisions under the Existing Indenture;
WHEREAS, in accordance with Section 9.01(e) of the Existing Indenture, the Company and the Trustee wish to amend the Existing Indenture to add, change or eliminate certain provisions of the Existing Indenture with respect to each series of Securities issued following the execution of this First Supplemental Indenture, as set forth below;
WHEREAS, the Company is delivering contemporaneously herewith to the Trustee, pursuant to the Existing Indenture, an Opinion of Counsel in connection with the execution and delivery of this First Supplemental Indenture;
WHEREAS, all things necessary to make this First Supplemental Indenture a legal and binding supplement to the Existing Indenture in accordance with its terms and the terms of the Existing Indenture have been done;
WHEREAS, the Company has complied with all conditions precedent provided for in the Existing Indenture relating to this First Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture.
-1-
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Section1.01 of the Existing Indenture is hereby amended by inserting the following new defined term immediately following the definition of corporation:
Covenant Breach means, with respect to the Securities of any series, (1) default in the deposit of any sinking fund payment, when and as due under the terms of a Security of that series and (2) a failure on the part of the Company duly to observe or perform any of the covenants or agreements on the part of the Company contained in the Securities of that series or in this Indenture (other than a covenant or agreement a default in the performance of which or breach of which constitutes an Event of Default pursuant to Section 5.01 of this Indenture, or which has expressly been included in this Indenture solely for the benefit of Securities other than Securities of that series; it being understood that to the extent a covenant or warranty is applicable solely to Securities other than Securities of that series, a default in the performance, or breach, of any such covenant or warranty shall not result in a Covenant Breach with respect to Securities of that series), and continuance of such failure 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 the 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 Covenant Breach hereunder. For the avoidance of doubt, a Covenant Breach shall not be an Event of Default with respect to any Security, except to the extent otherwise specified as contemplated by Section 3.01 with respect to such Security.
Section 1.2 Section 1.01 of the Existing Indenture is hereby amended by deleting the definition of Notice of Default in its entirety and replacing it with the following:
Notice of Covenant Breach means a written notice of the kind specified in the definition of Covenant Breach in this Section 1.01.
-2-
Section 1.3 Section 3.01 of the Existing Indenture is hereby amended as follows:
(a) Section 3.01(r) is hereby amended by deleting such Section 3.01(r) in its entirety and replacing it with the following:
(r) any deletion of or addition to or change in the Events of Default or to the definition of Covenant Breach set forth in Section 1.01, in each case with respect to the Securities of such series, including making Events of Default or Covenant Breaches inapplicable or changing the remedies available to holders of the Securities of such series upon an Event of Default or Covenant Breach;
(b) Section 3.01(s) is hereby amended by inserting the phrase or to the definition of Covenant Breach set forth in Section 1.01, after the phrase set forth in Article 10.
Section 1.4 Section 3.05 of the Existing Indenture is hereby amended by inserting or Covenant Breach after the phrase Event of Default in clause (b) of such section.
Section 1.5 Section 5.01 of the Existing Indenture is hereby amended by deleting such Section 5.01 in its entirety and replacing it with the following:
Event of Default, wherever used herein with respect to Securities of any series, means any one of the following events unless such event is either inapplicable to a particular series or is specifically deleted or modified as contemplated by Section 3.01:
(a) default in the payment of the principal or any premium on any Security of that series as and when the same shall become due and payable either at its Maturity, upon redemption, by declaration or otherwise, and continuance of such default for a period of 30 days; or
(b) 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; or
(c) [Intentionally omitted];
(d) [Intentionally omitted];
(e) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
-3-
(f) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided with respect to Securities of that series in the Board Resolution (or in an Officers Certificate detailing such establishment pursuant to such Board Resolution) or supplemental indenture establishing that series.
Section 1.6 Section 5.02 of the Existing Indenture is hereby amended as follows:
(a) The following is inserted as the last sentence of Section 5.02(a):
Unless otherwise specified as contemplated by Section 3.01 with respect to the Securities of such series, there shall be no rights of acceleration other than as described in this Section 5.02(a). In addition, for the avoidance of doubt, unless otherwise specified as contemplated by Section 3.01 with respect to the Securities of a series, neither the Trustee nor any Holders of such Securities shall have the right to accelerate the payment of such Securities, nor shall the payment of any Securities be otherwise accelerated, as a result of a Covenant Breach. Further, for avoidance of doubt, if an Event of Default as described in Section 5.01(g) is specified for a series of Securities, there will be no right to accelerate payment of such Securities on the terms described in the preceding paragraph unless such acceleration rights are granted specifically for such Securities as contemplated by Section 3.01.
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(b) The phrase and Covenant Breaches is inserted following the phrase Events of Default in Section 5.02(b)(ii).
(c) The second paragraph of Section 5.02(b) is hereby amended by deleting such paragraph in its entirety and replacing it with the following:
No such rescission shall affect any subsequent Event of Default or Covenant Breach or impair any right consequent thereon.
Section 1.7 Section 5.03 of the Existing Indenture is hereby amended by inserting or Covenant Breach after the phrase Event of Default in the last paragraph of such section.
Section 1.8 Section 5.07 of the Existing Indenture is hereby amended by inserting or Covenant Breach after each occurrence of the phrase Event of Default.
Section 1.9 Section 5.11 of the Existing Indenture is hereby amended by inserting or Covenant Breach after each occurrence of the phrase Event of Default.
Section 1.10 Section 5.13 of the Existing Indenture is hereby amended by inserting or Covenant Breach after the phrase Event of Default and by inserting the following at the end of such section:
For the purpose of this Section, the term default means any event which is, or after notice or the lapse of time or both would become, an Event of Default or Covenant Breach with respect to Securities of such series.
Section 1.11 Section 6.02 of the Existing Indenture is hereby amended as follows:
(a) Section 6.02 is hereby amended by inserting the phrase or Covenant Breach after each occurrence of the phrase Event of Default.
(b) The first paragraph of Section 6.02 is hereby amended by inserting the following at the end of the first sentence of such paragraph:
; provided, however, that in the case of any default of the character specified in Clause (2) under the definition of Covenant Breach in Section l.01 with respect to Securities of such series, no such notice to the Holders shall be given until at least 30 days after the occurrence thereof.
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Section 1.12 Section 6.08 of the Existing Indenture is hereby amended by inserting or Covenant Breach after the phrase Event of Default and inserting the following at the end of such paragraph:
For the purpose of determining whether a conflicting interest exists within the meaning of the Trust Indenture Act, the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default or Covenant Breach.
Section 1.13 Section 8.01 of the Existing Indenture is hereby amended as follows:
(a) The first paragraph of Section 8.01 of the Existing Indenture is hereby amended by deleting the words up to and including the colon in their entirety and replacing them with the following:
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, other than a sale or conveyance of all or substantially all of its assets to one or more Subsidiaries, unless:
(b) Section 8.01(b) of the Existing Indenture is hereby amended by inserting or Covenant Breach after each occurrence of the phrase Event of Default.
Section 1.14 Section 9.01(c) of the Existing Indenture is hereby amended by inserting or Covenant Breaches after each occurrence of the phrase Events of Default.
Section 1.15 Section 9.02 of the Existing Indenture is hereby amended by inserting the following at the end thereof:
For the purpose of this Section, the term default means any event which is, or after notice or the lapse of time or both would become, an Event of Default or Covenant Breach.
Section 1.16 Section 10.04 of the Existing Indenture is hereby amended by inserting the following at the end thereof:
For the purpose of this Section, the term default means any event which is, or after notice or the lapse of time or both would become, an Event of Default or Covenant Breach.
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Section 1.17 Section 13.03 of the Existing Indenture is hereby amended by deleting such Section 13.03 in its entirety and replacing it with the following:
Upon the Companys exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be,
(a) the Company shall be released from any covenants provided pursuant to Sections 3.01(s), 9.01(b) or 9.01(e) for the benefit of the Holders of such Securities, and
(b) the occurrence of any Covenant Breach (with respect to any such covenants provided pursuant to Section 3.01(s), 9.01(b) or 9.01(e)) shall be deemed not to be or result in a Covenant Breach and, if applicable, any event specified pursuant to Section 5.01(g) shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities or any series of Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect to such Securities, 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 specified Section (to the extent so specified in the case of a Covenant Breach), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1.18 Section 13.04 of the Existing Indenture is hereby amended as follows:
(a) Section 13.04(c) is hereby amended by deleting the reference to Holders and replacing it with beneficial owners.
(b) Section 13.04(e) is hereby amended by inserting or Covenant Breach after the phrase Event of Default.
ARTICLE II
MISCELLANEOUS
Section 2.1 Definitions. All capitalized terms used herein and not otherwise defined below shall have the meanings ascribed thereto in the Existing Indenture.
Section 2.2 Effect of this First Supplemental Indenture. The Existing Indenture shall be modified in accordance with this First Supplemental Indenture, and this First Supplemental Indenture shall form part of the Existing Indenture for all purposes; and every Holder of Securities thereafter authenticated or delivered thereunder shall be bound hereby. The Existing Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Any cross-references to the provisions of the Existing Indenture that are deleted or modified as a result of this First Supplemental Indenture are hereby accordingly deleted or modified, as applicable. Notwithstanding anything to the contrary contained herein, the modifications to the Existing Indenture pursuant to this First Supplemental Indenture shall not apply to, or modify the rights of the Holders of, any Security Outstanding prior to the date hereof (including, without limitation, any Additional Notes (as defined in the applicable Officers Certificate) for any series of Securities outstanding prior to the date hereof).
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Section 2.3 Trust Indenture Act Controls. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this First Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 2.4 Effect of Headings and Table of Contents. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.5 Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 2.6 Separability Clause. If any provision in this First Supplemental Indenture 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 2.7 Governing Law. This First Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the New York, without regard to conflict of laws principles thereof.
Section 2.8 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 2.9 Electronic Signatures. The words execution, signed, signature, delivery and words of like import in or relating to this First Supplemental Indenture and/or any document, notice, instrument or certificate to be signed and/or delivered in connection with this First Supplemental Indenture and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), electronic deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. Electronic Signatures means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record. Further, all notices, approvals, consents, requests and any communications hereunder must be in writing, provided that any communication sent to the Trustee hereunder that is required to be signed must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by the authorized representative of the Company. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
SVB FINANCIAL GROUP | ||
By: | /s/ Daniel Beck | |
Name: | Daniel Beck | |
Title: | Chief Financial Officer |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
By: |
| |
Name: | ||
Title: |
[Signature Page to First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
SVB FINANCIAL GROUP | ||
By: |
| |
Name: | Daniel Beck | |
Title: | Chief Financial Officer |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Bradley E. Scarbrough | |
Name: | Bradley E. Scarbrough | |
Title: | Vice President |
[Signature Page to First Supplemental Indenture]
Exhibit 4.3
SVB FINANCIAL GROUP
Officers Certificate
April 29, 2022
Reference is made to the Indenture dated as of September 20, 2010, by and between SVB Financial Group (the Company) and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), a national banking association, as trustee (the Trustee), as supplemented by the first supplemental indenture dated as of April 28, 2022, by and between the Company and the Trustee (as so supplemented, the Base Indenture and, together with this Officers Certificate, the Indenture). The Trustee is the trustee for any and all securities issued under the Indenture. Pursuant to Section 1.02, Section 2.01 and Section 3.01 of the Base Indenture, the undersigned officers do hereby certify, in connection with the issuance and authentication of (i) $350,000,000 aggregate principal amount of 4.345% Senior Fixed Rate/Floating Rate Notes due 2028 (the 2028 Notes) and (ii) $450,000,000 aggregate principal amount of 4.570% Senior Fixed Rate/Floating Rate Notes due 2033 (the 2033 Notes, and together with the 2028 Notes, the Notes), that the terms of the 2028 Notes and the 2033 Notes are as follows:
Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Base Indenture.
2028 Notes
Title: | 4.345% Senior Fixed Rate/Floating Rate Notes due 2028. | |
Issuer: | SVB Financial Group. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | U.S. Bank Trust Company, National Association. | |
Aggregate Principal Amount at Maturity: | $350,000,000. | |
Issue Price: | 100.000%, of face amount, plus accrued interest, if any, from April 29, 2022. | |
Maturity Date: | April 29, 2028. | |
Fixed Interest Rate: | 4.345% per annum. | |
Floating Interest Rate: | Compounded SOFR determined as set forth in the form of 2028 Note attached hereto as Exhibit A, plus 1.713% per annum. |
Date from which Interest will Accrue: | April 29, 2022. | |
Regular Record Dates: | 15 calendar days prior to each interest payment date. | |
Fixed Interest Payment Dates: | April 29 and October 29 of each year, commencing on October 29, 2022 and ending on April 29, 2027. | |
Floating Interest Payment Dates: | July 29, 2027, October 29, 2027, January 29, 2028 and at the 2028 Notes Maturity Date. | |
Place of Payment: | The contiguous United States. | |
Optional Redemption: | The 2028 Notes are redeemable at the option of the Company, in whole but not in part, on April 29, 2027, the date that is one year prior to the 2028 Notes Maturity Date, at 100% of the principal amount of the 2028 Notes (par), plus accrued and unpaid interest thereon to, but excluding, the date of redemption. In addition, the 2028 Notes may be redeemed, in whole or in part, on or after the 30th day prior to the 2028 Notes Maturity Date at 100% of the principal amount of the 2028 Notes (par), plus accrued and unpaid interest thereon to, but excluding, the date of redemption. | |
Sinking Fund: | None. | |
Conversion: | None. | |
Covenants: | The Company shall comply with the limitation on liens covenant set forth in Section 7 of the form of 2028 Note attached hereto as Exhibit A and with all of the covenants set forth in the Base Indenture. | |
Defeasance: | Sections 13.02 and 13.03 of the Base Indenture shall be applicable to the 2028 Notes. | |
Events of Default: | The Events of Default applicable to the 2028 Notes are as set forth in Section 5.01 of the Base Indenture. | |
Denominations: | Minimum of $2,000 and integral multiples of $1,000 thereafter. | |
Global Security: | The 2028 Notes shall be issued in the form of one or more Global Securities in the form attached hereto as Exhibit A. |
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2033 Notes -3-
For the avoidance of doubt, any reference in the Indenture to facsimile signatures shall be understood to
include electronic signatures. Subject to the representations, warranties and covenants described in the Indenture, as amended or
supplemented from time to time, the Company shall be entitled, subject to authorization by the Board of Directors of the Company and an Officers Certificate, to increase the aggregate principal amount of either series of Notes outstanding by
creating and issuing additional notes from time to time under the applicable series of Notes issued hereby. Any such additional notes of a series shall have identical terms as the applicable series of Notes issued on the issue date, other than with
respect to the date of issuance, the issue price and interest accrued prior to the issue date of the additional notes (together the Additional Notes). Any Additional Notes shall be issued in accordance with Section 3.01 of
the Base Indenture and shall have the same CUSIP number as the applicable series of Notes. No such Additional Notes shall be issued unless they will be fungible with the applicable series of Notes for U.S. federal income tax purposes. Each series of
Notes and any Additional Notes of such series shall rank equally and ratably and shall be treated as a single series for all purposes under the Indenture. No Additional Notes shall be issued if any Event of Default has occurred and is continuing
with respect to the Notes. -4-
Each such officer certifies that he has read and understands the provisions of the Indenture
and the definitions relating thereto. The statements made in this Officers Certificate are based upon the examination of the provisions of the Indenture and upon the relevant books and records of the Company. In such officers opinion,
each officer has made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not the covenants and conditions of such Indenture relating to the issuance and authentication of the
Notes have been complied with. In such officers opinion, such covenants and conditions have been complied with. Copies of the
resolutions of the Board of Directors (the Board), the Finance Committee of the Board, and the Pricing Committee of the Finance Committee pursuant to which the terms of the Notes were established are attached hereto as Exhibit C.
-5-
IN WITNESS WHEREOF the undersigned officers of the Company have duly executed this
Officers Certificate as of the date first written above. /s/ Greg Becker /s/ Daniel Beck
EXHIBIT A Form of 2028 Note
FORM OF 4.345% SENIOR FIXED RATE/FLOATING RATE NOTE DUE 2028 UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(DTC), 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN. TRANSFERS OF THIS NOTE ARE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE. IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. THIS NOTE IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SVB FINANCIAL GROUP 4.345% Senior Fixed Rate/Floating Rate Note due 2028 No. [ ] SVB FINANCIAL GROUP, a Delaware corporation (the Company), for value received promises to
pay to CEDE & CO registered assigns the principal sum of [ ] on April 29, 2028 (the Maturity Date). Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at
this place.
(REVERSE OF NOTE) SVB FINANCIAL GROUP 4.345% Senior Fixed Rate/Floating Rate Note due 2028 1. Interest and Principal. SVB Financial Group (the Company) promises to pay interest on the principal amount
of this Note (i) from and including April 29, 2022 to, but excluding, April 29, 2027 (the Fixed Rate Period), at a fixed rate of 4.345% per annum, semi-annually in arrears, on April 29 and October 29 of
each year (each, a Fixed Interest Payment Date), commencing on October 29, 2022 and ending on April 29, 2027, and (ii) from, and including April 29, 2027 to, but excluding, the Maturity Date (the
Floating Rate Period), at an annual rate equal to Compounded SOFR (as defined and computed below) plus 1.713%, quarterly in arrears on July 29, 2027, October 29, 2027, January 29, 2028 and at the Maturity Date
(each, a Floating Interest Payment Date and together with any Fixed Interest Payment Date, an Interest Payment Date). The Company will pay interest to the holder in whose name this Note is registered at the close of business on the fifteenth calendar day
(whether or not a business day (as defined below)), immediately preceding the related Interest Payment Date, as applicable. During the
Fixed Rate Period, interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA
Uniform Practice Code. During the Floating Rate Period, interest will be computed on the basis of the actual number of days in each interest period (or any other relevant period) and a 360-day year. During the
Floating Rate Period, the amount of accrued interest payable on the Notes for each interest period will be computed by multiplying (i) the outstanding principal amount of the Notes by (ii) the product of (a) the interest rate for the
relevant interest period multiplied by (b) the quotient of the actual number of calendar days in the applicable Observation Period (defined below) relating to such interest period (or any other relevant period) divided by 360. The interest rate
on the Notes will in no event be lower than zero. If a Fixed Interest Payment Date, Maturity Date or redemption date falls on a day that
is not a business day (as defined below), the related payment of interest or payment of principal and interest at maturity or redemption will be made on the next day that is a business day, and no interest on the Notes or such payment will accrue
for the period from and after such Fixed Interest Payment Date, Maturity Date or redemption date. If a Floating Interest Payment Date
(other than a Maturity Date or redemption date) falls on a day that is not a business day, such Floating Interest Payment Date will be postponed to the following business day, except that, if that business day would fall in the next calendar month,
the Floating Interest Payment Date will be the immediately preceding business day.
A business day with respect to the Notes, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The City of New York or the place of payment that are authorized or obligated by law or executive order to close. The Company shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes, and at the same rate on
overdue, installments of interest (without regard to any applicable grace periods) to the extent lawful from the dates such amounts are due until such amounts are paid or made available for payment, and such interest shall be payable on demand. Payment of the principal of, and premium, if any, and interest due on this Note at maturity or upon redemption will be made upon surrender of
this Note at the office of the paying agent in the contiguous United States. The principal of, and premium, if any, and interest due on this Note shall be paid 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. Payments of interest (including interest on any Interest Payment Date) will be made, subject to such surrender where applicable and subject to the Trustees or paying agents
arrangements with the Depositary, at the option of the Company, (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) by wire transfer at such place and to such
account at a banking institution in the United States of America as may be designated in writing to the Trustee or the paying agent at least 15 days prior to the date for payment by the Person entitled thereto. During the Floating Rate Period, the Calculation Agent will determine Compounded SOFR, the interest rate and accrued interest for each
interest period in arrears as soon as reasonably practicable on or after the Interest Payment Determination Date (as defined below) for such interest period and prior to the relevant Floating Interest Payment Date and will notify the Company, the
Trustee and the paying agent of Compounded SOFR, such interest rate and accrued interest for each interest period as soon as reasonably practicable after such determination, but in any event by the business day immediately prior to the Floating
Interest Payment Date. At the request of a holder of the Notes, the Calculation Agent will provide Compounded SOFR, the interest rate and the amount of interest accrued with respect to any interest period, after Compounded SOFR, such interest rate
and accrued interest have been determined. Secured Overnight Financing Rate and the SOFR Index SOFR is published by the FRBNY and is intended to be a broad measure of the cost of borrowing cash overnight collateralized by U.S. Treasury
securities. The SOFR Index is published by the FRBNY and measures the cumulative impact of compounding SOFR on a unit of investment over
time, with the initial value set to 1.00000000 on April 2, 2018, the first value date of SOFR. The SOFR Index value reflects the effect of compounding SOFR each business day and allows the calculation of compounded SOFR averages over custom
time periods.
The FRBNY notes on its publication page for the SOFR Index that use of the SOFR Index is
subject to important limitations, indemnification obligations and disclaimers, including that the FRBNY may alter the methods of calculation, publication schedule, rate revision practices or availability of the SOFR Index at any time without notice.
The interest rate for any interest period during the floating rate period will not be adjusted for any modifications or amendments to the SOFR Index or SOFR data that the FRBNY may publish after the interest rate for that interest period has been
determined. Compounded SOFR With respect to any interest period during the floating rate period, Compounded SOFR will be determined by the Calculation Agent in
accordance with the following formula (and the resulting percentage will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point):
where: SOFR Index Start = For periods other than the initial interest period during the floating rate period, the SOFR Index value on the
preceding Interest Payment Determination Date, and, for the initial interest period, the SOFR Index value on the date that is two U.S. Government Securities Business Days before the first day of such initial interest period (such first day expected
to be April 29, 2027 for the Notes); SOFR Index End = The SOFR Index value on the Interest Payment Determination Date
relating to the applicable Floating Interest Payment Date (or in the final interest period, relating to the Maturity Date or redemption date); and d is the number of calendar days in the relevant Observation Period. For purposes of determining Compounded SOFR, Interest Payment Determination Date means the date two U.S. Government Securities Business Days before each Floating Interest
Payment Date (or preceding the Maturity Date or redemption date). Observation Period means, in respect of each interest
period, the period from, and including, the date two U.S. Government Securities Business Days preceding the first date in such interest period to, but excluding, the date two U.S. Government Securities Business Days preceding the Floating Interest
Payment Date for such interest period (or in the final interest period, preceding the applicable Maturity Date or redemption date).
SOFR Index means, with respect to any U.S. Government Securities Business Day:
(1) the SOFR Index value as published by the SOFR Administrator as such index appears on the SOFR Administrators Website at 3:00
p.m. (New York time) on such U.S. Government Securities Business Day (the SOFR Index Determination Time); or: (2) if a SOFR
Index value does not so appear as specified in (1) above at the SOFR Index Determination Time, then: (i) if a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, Compounded SOFR
shall be the rate determined pursuant to the SOFR Index Unavailable Provisions described below; or (ii) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR, Compounded SOFR
shall be the rate determined pursuant to the Effect of a Benchmark Transition Event provisions described below. SOFR means the daily secured overnight financing rate as provided by the SOFR Administrator on the SOFR Administrators
Website. SOFR Administrator means the FRBNY (or a successor administrator of SOFR). SOFR Administrators Website means the website of the SOFR Administrator, currently at http://www.newyorkfed.org, or any
successor source. The information contained on such website is not part of this prospectus supplement and is not incorporated in this prospectus supplement by reference. U.S. Government Securities Business Day means any day except for a Saturday, a Sunday or a day on which the Securities Industry
and Financial Markets Association or any successor organization recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities. Notwithstanding anything to the contrary in the indenture or the Notes, if the Company or its designee determines on or prior to the relevant
Reference Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions set forth below under Effect of Benchmark
Transition Event will thereafter apply to all determinations of the rate of interest payable on the Notes. For the avoidance of
doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each interest period will be an annual rate equal to the sum of the
Benchmark Replacement plus 1.713%. SOFR Index Unavailable Provisions If a SOFR Index Start or SOFR Index End is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event
and its related Benchmark Replacement Date have not occurred with respect to SOFR, Compounded SOFR means, for the applicable interest period for which such index is not available, the rate of return on a daily compounded interest
investment calculated in accordance with the formula for SOFR averages, and definitions required for such formula, published on the SOFR Administrators Website at https://www.newyorkfed.org/markets/treasury-repo-reference-rates-information.
For the purposes of this provision, references in the SOFR averages compounding formula and related definitions to calculation period shall be replaced with Observation Period and the words that is, 30-, 90-, or 180- calendar days shall be removed. If SOFR (SOFRi) does not so appear for any day, i in
the Observation Period, SOFRi for such day i shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrators Website.
Effect of Benchmark Transition Event (1) Benchmark Replacement. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred on or prior to the Reference Time in respect of any determination of the Benchmark (as defined below) on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Notes in respect
of such determination on such date and all determinations on all subsequent dates. (2) a Benchmark Replacement, the Company or its
designee will have the right to make Benchmark Replacement Conforming Changes from time to time. (3) Decisions and Determinations. Any
determination, decision or election that may be made by the Company or its designee pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment, or the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection: will be conclusive and binding absent manifest error; if made by the Company, will be made in the Companys sole discretion; if made by the Companys designee, will be made after consultation with the Company, and such designee will
not make any such determination, decision or election to which the Company objects; and notwithstanding anything to the contrary in the indenture or the Notes, shall become effective without consent
from the holders of the Notes or any other party. Any determination, decision or election pursuant to the benchmark
replacement provisions shall be made by the Company or its designee (which may be its affiliate) on the basis as described above, and in no event shall the Calculation Agent, the Trustee or the paying agent be responsible for making any such
determination, decision or election.
In connection with the SOFR definition above, the following definitions apply: Benchmark means, initially, Compounded SOFR, as such term is defined above; provided that if a Benchmark Transition Event and its
related Benchmark Replacement Date have occurred with respect to Compounded SOFR (or the published SOFR Index used in the calculation thereof) or the then-current Benchmark, then Benchmark means the applicable Benchmark Replacement. Benchmark Replacement means the first alternative set forth in the order below that can be determined by the Company or its
designee as of the Benchmark Replacement Date; provided that if the Benchmark Replacement cannot be determined in accordance with clause (1) below as of the Benchmark Replacement Date and the Company or its designee shall have determined that
the ISDA Fallback Rate determined in accordance with clause (2) below is not an industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time, then clause
(2) below shall be disregarded, and the Benchmark Replacement shall be determined in accordance with clause (3) below: (1) the
sum of: (a) an alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment; (2) the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or (3) the sum of: (a) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the
then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment.
Benchmark Replacement Adjustment means the first alternative set forth in the order below that can be determined by the
Company or its designee as of the Benchmark Replacement Date: (1) the spread adjustment (which may be a positive or negative value or
zero), or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; (2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or (3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company or its designee giving due
consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar
denominated floating rate notes at such time.
Benchmark Replacement Conforming Changes means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of interest period, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or
tenors, and other administrative matters) that the Company or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee
decides that adoption of any portion of such market practice is not administratively feasible or if the Company or its designee determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Company or
its designee determines is reasonably practicable). Benchmark Replacement Date means the earliest to occur of the following
events with respect to the then-current Benchmark (including any daily published component used in the calculation thereof): (1) in the
case of clause (1) or (2) of the definition of Benchmark Transition Event, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of
the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or (2) in the case of clause (3) of
the definition of Benchmark Transition Event, the date of the public statement or publication of information referenced therein. For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the
Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination. Benchmark Transition Event means the occurrence of one or more of the following events with respect to the then-current Benchmark
(including the daily published component used in the calculation thereof): (1) a public statement or publication of information by or on
behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide the Benchmark (or such component); (2) a public statement
or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the
administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or
(3) a public statement or publication of information by the regulatory supervisor for the
administrator of the Benchmark announcing that the Benchmark is no longer representative. Calculation Agent means the firm
appointed by the Company prior to the commencement of the floating rate period. The Company or an affiliate of the Companys may assume the duties of the Calculation Agent. The institution serving as Trustee shall have no obligation to serve as
Calculation Agent. ISDA Definitions means the 2006 ISDA Definitions published by ISDA, or any successor thereto, as amended
or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time. ISDA Fallback Adjustment means the spread adjustment (which may be a positive or negative value or zero) that would apply for
derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor. ISDA Fallback Rate means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective
upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment. Reference Time with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR
Index Determination Time, as such time is defined above, and (2) if the Benchmark is not Compounded SOFR, the time determined by the Company or its designee in accordance with the Benchmark Replacement Conforming Changes. Relevant Governmental Body means the Federal Reserve Board and/or the FRBNY, or a committee officially endorsed or convened by the
Federal Reserve Board and/or the FRBNY or any successor thereto. Unadjusted Benchmark Replacement means the Benchmark
Replacement excluding the Benchmark Replacement Adjustment. The interest rate and amount of interest to be paid on the Notes for each
interest period will be determined by the Calculation Agent. All determinations made by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on the Company and the holders of the Notes. So long as
Compounded SOFR is required to be determined with respect to the Notes, there will at all times be a Calculation Agent. In the event that any then acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall
fail duly to establish Compounded SOFR for any interest period, or the Company proposes to remove such Calculation Agent, the Company shall appoint another Calculation Agent.
None of the Trustee, the paying agent and the Calculation Agent shall be under any
obligation (i) to monitor, determine or verify the unavailability or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition
Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been
satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary
or advisable, if any, in connection with any of the foregoing. None of the Trustee, the paying agent and the Calculation Agent shall be
liable for any inability, failure or delay on its part to perform any of its duties set forth in this offering memorandum as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement, including as a result of
any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this offering memorandum and reasonably required
for the performance of such duties. Neither the Trustee nor the Calculation Agent shall be responsible or liable for the actions or
omissions of the Company or its designee, or any failure or delay in the performance of its duties or obligations, nor shall they be under any obligation to oversee or monitor its performance; and each of the Trustee and Calculation Agent shall be
entitled to rely conclusively upon, any determination made, and any instruction, notice, officers certificate, or other instrument or information provided, by the Company or its designee, without independent verification, investigation or
inquiry of any kind by the Trustee or Calculation Agent. Neither the Trustee nor the Calculation Agent shall be under any duty to succeed to, assume or otherwise perform any of the duties of the Company or its designee, or to appoint a successor or
replacement in the event of its resignation or removal, or to remove and replace the Company or its designee in the calculation of the interest rate applicable hereto in the event of a default, breach or failure of performance of the Company or its
designee with respect to its duties and obligations relating to the determination of the applicable interest rate. 2. Paying Agent. Initially, U.S. Bank Trust Company, National Association (the Trustee) will
act as paying agent. The Company may change any paying agent without notice to the holders. 3. Indenture;
Defined Terms. This Note is one of the 4.345% Senior Fixed Rate/Floating Rate Notes due 2028 (the Notes) issued under an indenture dated September 20, 2010, as supplemented by the first supplemental indenture dated
as of April 28, 2022 (as so supplemented, the Base Indenture), by and between the Company and the Trustee (as successor in interest to U.S. Bank National Association), and established pursuant to an Officers Certificate
dated April 29, 2022, issued pursuant to Section 1.02, Section 2.01 and Section 3.01 thereof (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are
Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are
used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the TIA) as in
effect on the date on which the Base Indenture was qualified under the TIA; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, TIA means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of
the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. 4. Denominations;
Transfer; Exchange. The Notes are in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. A holder shall register the transfer or exchange of Notes in accordance with the Indenture.
The Company may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The
Company need not issue, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Company register the transfer or exchange of any Note
selected for redemption in whole or in part. 5. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the holders
of at least a majority in aggregate principal amount of each series of Outstanding Securities affected by such amendment, supplement or waiver. Without notice to or consent of any holder, the parties thereto may amend or supplement the Indenture and
the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the TIA, or make certain other changes that do not adversely
affect the rights of any holder of a Note in any material respect. 6. Redemption. The Notes are redeemable
at the option of the Company, in whole but not in part, on April 29, 2027, the date that is one year prior to the Maturity Date, upon not less than 10 days nor more than 60 days prior notice to holders and the Trustee, at 100% of the
principal amount of the notes (par), plus accrued and unpaid interest thereon to the date of redemption. In addition, the Notes may be redeemed, in whole or in part, on or after the 30th day prior to the Maturity Date at 100% of the principal amount
of the notes (par), plus accrued and unpaid interest thereon to, but not including, the date of redemption. The Company shall provide written notice to the Trustee of the redemption at least two business days prior to the date such notice is
delivered to the holders. The Company will send notice of redemption to DTC.
If fewer than all the Notes are redeemed, the Trustee will select the particular Notes to be
redeemed on a pro-rata basis, by lot or by such other method that the Trustee deems fair and appropriate (and in the case of the Global Securities, in accordance with the applicable procedures of DTC). 7. Liens. As long as any of the Notes are outstanding, the Company will not, and it will not permit any
Subsidiary to, pledge, mortgage or hypothecate or permit to exist any pledge, mortgage or hypothecation or other lien upon any Voting Shares of any Principal Subsidiary Bank to secure any indebtedness for borrowed money without making effective
provisions whereby the Notes then outstanding, and, at the Companys option, any other senior indebtedness ranking equally with the Notes, shall be equally and ratably secured with any and all such indebtedness. Notwithstanding the foregoing, this restriction shall not prohibit the mortgage, pledge, or hypothecation of, or the establishment of a lien
on, any such Voting Shares: (i) to secure indebtedness of the Company or a Subsidiary as part of the purchase
price of such Voting Shares, or incurred prior to, at the time of or within 120 days after acquisition thereof for the purpose of financing all or any part of the purchase price thereof; (ii) by the acquisition by the Company or any Subsidiary of any Voting Shares subject to mortgages, pledges,
hypothecations or other liens existing thereon at the time of acquisition (whether or not the obligations secured thereby are assumed by the Company or such Subsidiary); (iii) by the assumption by the Company or a Subsidiary of obligations secured by mortgages on, pledges or
hypothecations of, or other liens on, any such Voting Shares, existing at the time of the acquisition by the Company or such Subsidiary of such Voting Shares; (iv) by the extension, renewal or refunding (or successive extensions, renewals or refundings), in whole or in part, of
any mortgage, pledge, hypothecation or other lien referred to in the foregoing clauses (i), (ii), and (iii); provided, however, that the principal amount of any and all other obligations and indebtedness secured thereby shall not exceed the
principal amount so secured at the time of each extension, renewal or refunding, and that such extension, renewal or refunding shall be limited to all or a part of the Voting Shares that were subject to the mortgage, pledge, hypothecation or other
lien so extended, renewed or refunded; or (v) by liens to secure loans or other extensions of credit by a
subsidiary bank subject to Section 23A of the Federal Reserve Act or any successor or similar federal law or regulations promulgated thereunder; and
provided, further, that notwithstanding the foregoing, the Company may incur or permit to be incurred or to exist upon such Voting Shares: (x) liens for taxes, assessments or other governmental charges or levies which are not yet due or are
payable without penalty or of which the amount, applicability or validity is being contested by the Company or a Subsidiary in good faith by appropriate proceedings and the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto (segregated to the extent required by generally accepted accounting principles); or (y) the lien of any judgment, if such judgment shall not have remained undischarged, or unstayed on appeal or otherwise, for more than 90 days.
In case the Company or any Subsidiary shall propose to pledge, mortgage or hypothecate any
Voting Shares at any time owned by it to secure any indebtedness, other than as permitted by subdivisions (i) to (v), inclusive, of this Section, the Company will prior thereto give written notice thereof to the Trustee, and will prior to or
simultaneously with such pledge, mortgage or hypothecation, by supplemental indenture delivered to the Trustee, in form satisfactory to it, effectively secure all the Notes equally and ratably with such indebtedness, by pledge, mortgage or
hypothecation of such Voting Shares. Such supplemental indenture shall contain provisions concerning the possession, control, release and substitution of mortgaged and pledged property and securities and other appropriate matters which are required
or permitted by the TIA (as in effect at the date of execution of such supplemental indenture) to be included in a secured indenture qualified under the TIA, and may also contain such additional and mandatory provisions permitted by the TIA as may
be necessary to, or as the Trustee may reasonably request to further secure, such pledge, mortgage or hypothecation. Subsidiary is defined as any corporation, a majority of the outstanding Voting Shares of which are owned, directly or indirectly,
by the Company or one or more of its subsidiaries, or by the Company and one or more of its other subsidiaries. Principal
Subsidiary Bank is defined as Silicon Valley Bank or any other U.S. subsidiary bank of the Company, the consolidated assets of which constitute 20% or more of the Companys consolidated assets or any other subsidiary bank of the Company
designated as a Principal Subsidiary Bank pursuant to a board resolution and set forth in an Officers Certificate delivered to the Trustee. Voting Shares are defined as outstanding shares of capital stock of any class having voting power under ordinary circumstances to
elect at least a majority of the board of directors. 8. Authentication. This Note shall not be valid until
the Trustee manually signs the certificate of authentication on this Note. 9. Abbreviations and Defined
Terms. Customary abbreviations may be used in the name of a holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 10. CUSIP Numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the holders of the Notes. No representation is made as to the accuracy of
such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Governing Law. The laws of the State of New York shall
govern the Indenture and this Note thereof.
ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to (Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or
tax I.D. No.) and irrevocably appoint _____________________ agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him. Sign exactly as your name appears on the other side of this Note. Signature Signature Guarantee: Signature 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 United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made: Date of Exchange
EXHIBIT B Form of 2033 Note
FORM OF 4.570% SENIOR FIXED RATE/FLOATING RATE NOTE DUE 2033 UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(DTC), 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN. TRANSFERS OF THIS NOTE ARE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE. IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. THIS NOTE IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SVB FINANCIAL GROUP 4.570% Senior Fixed Rate/Floating Rate Note due 2033
SVB FINANCIAL GROUP, a Delaware corporation (the Company), for value received promises to
pay to CEDE & CO registered assigns the principal sum of [ ] on April 29, 2033 (the Maturity Date). Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at
this place.
This is one of the Notes of the series designated herein and referred to in the
within-mentioned Indenture. Dated: _______________, ____ U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
(REVERSE OF NOTE) SVB FINANCIAL GROUP 4.570% Senior Fixed Rate/Floating Rate Note due 2033 1. Interest and Principal. SVB Financial Group (the Company) promises to pay interest on the principal amount
of this Note (i) from and including April 29, 2022 to, but excluding, April 29, 2032 (the Fixed Rate Period), at a fixed rate of 4.570% per annum, semi-annually in arrears, on April 29 and October 29 of
each year (each, a Fixed Interest Payment Date), commencing on October 29, 2022 and ending on April 29, 2032, and (ii) from, and including April 29, 2032 to, but excluding, the Maturity Date (the
Floating Rate Period), at an annual rate equal to Compounded SOFR (as defined and computed below) plus 1.967%, quarterly in arrears on July 29, 2032, October 29, 2032, January 29, 2033 and at the Maturity Date
(each, a Floating Interest Payment Date and together with any Fixed Interest Payment Date, an Interest Payment Date). The Company will pay interest to the holder in whose name this Note is registered at the close of business on the fifteenth calendar day
(whether or not a business day (as defined below)), immediately preceding the related Fixed Interest Payment Date or Floating Interest Payment Date, as applicable. During the Fixed Rate Period, interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code. During the Floating Rate Period, interest will be computed on the basis of the actual number of days in each
interest period (or any other relevant period) and a 360-day year. During the Floating Rate Period, the amount of accrued interest payable on the Notes for each interest period will be computed by multiplying
(i) the outstanding principal amount of the Notes by (ii) the product of (a) the interest rate for the relevant interest period multiplied by (b) the quotient of the actual number of calendar days in the applicable Observation
Period (defined below) relating to such interest period (or any other relevant period) divided by 360. The interest rate on the Notes will in no event be lower than zero. If a Fixed Interest Payment Date, Maturity Date or redemption date falls on a day that is not a business day (as defined below), the related
payment of interest or payment of principal and interest at maturity or redemption will be made on the next day that is a business day, and no interest on the Notes or such payment will accrue for the period from and after such Fixed Interest
Payment Date, Maturity Date or redemption date. If a Floating Interest Payment Date (other than a Maturity Date or redemption date) falls
on a day that is not a business day, such Floating Interest Payment Date will be postponed to the following business day, except that, if that business day would fall in the next calendar month, the Floating Interest Payment Date will be the
immediately preceding business day.
A business day with respect to the Notes, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The City of New York or the place of payment that are authorized or obligated by law or executive order to close. The Company shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes, and at the same rate on
overdue, installments of interest (without regard to any applicable grace periods) to the extent lawful from the dates such amounts are due until such amounts are paid or made available for payment, and such interest shall be payable on demand. Payment of the principal of, and premium, if any, and interest due on this Note at maturity or upon redemption will be made upon surrender of
this Note at the office of the paying agent in the contiguous United States. The principal of, and premium, if any, and interest due on this Note shall be paid 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. Payments of interest (including interest on any Fixed Interest Payment Date or Floating Interest Payment Date) will be made, subject to such surrender where applicable and subject to the
Trustees or paying agents arrangements with the Depositary, at the option of the Company, (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) by wire
transfer at such place and to such account at a banking institution in the United States of America as may be designated in writing to the Trustee or the paying agent at least 15 days prior to the date for payment by the Person entitled thereto.
During the Floating Rate Period, the Calculation Agent will determine Compounded SOFR, the interest rate and accrued interest for each
interest period in arrears as soon as reasonably practicable on or after the Interest Payment Determination Date (as defined below) for such interest period and prior to the relevant Floating Interest Payment Date and will notify the Company, the
Trustee and the paying agent of Compounded SOFR, such interest rate and accrued interest for each interest period as soon as reasonably practicable after such determination, but in any event by the business day immediately prior to the Floating
Interest Payment Date. At the request of a holder of the Notes, the Calculation Agent will provide Compounded SOFR, the interest rate and the amount of interest accrued with respect to any interest period, after Compounded SOFR, such interest rate
and accrued interest have been determined. Secured Overnight Financing Rate and the SOFR Index SOFR is published by the FRBNY and is intended to be a broad measure of the cost of borrowing cash overnight collateralized by U.S. Treasury
securities. The SOFR Index is published by the FRBNY and measures the cumulative impact of compounding SOFR on a unit of investment over
time, with the initial value set to 1.00000000 on April 2, 2018, the first value date of SOFR. The SOFR Index value reflects the effect of compounding SOFR each business day and allows the calculation of compounded SOFR averages over custom
time periods.
The FRBNY notes on its publication page for the SOFR Index that use of the SOFR Index is
subject to important limitations, indemnification obligations and disclaimers, including that the FRBNY may alter the methods of calculation, publication schedule, rate revision practices or availability of the SOFR Index at any time without notice.
The interest rate for any interest period during the floating rate period will not be adjusted for any modifications or amendments to the SOFR Index or SOFR data that the FRBNY may publish after the interest rate for that interest period has been
determined. Compounded SOFR With respect to any interest period during the floating rate period, Compounded SOFR will be determined by the Calculation Agent in
accordance with the following formula (and the resulting percentage will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point):
where: SOFR Index Start = For periods other than the initial interest period during the floating rate period, the SOFR Index value on the
preceding Interest Payment Determination Date, and, for the initial interest period, the SOFR Index value on the date that is two U.S. Government Securities Business Days before the first day of such initial interest period (such first day expected
to be April 29, 2032 for the Notes); SOFR Index End = The SOFR Index value on the Interest Payment Determination Date
relating to the applicable Floating Interest Payment Date (or in the final interest period, relating to the Maturity Date or redemption date); and d is the number of calendar days in the relevant Observation Period. For purposes of determining Compounded SOFR, Interest Payment Determination Date means the date two U.S. Government Securities Business Days before each Floating Interest
Payment Date (or preceding the Maturity Date or redemption date). Observation Period means, in respect of each interest
period, the period from, and including, the date two U.S. Government Securities Business Days preceding the first date in such interest period to, but excluding, the date two U.S. Government Securities Business Days preceding the Floating Interest
Payment Date for such interest period (or in the final interest period, preceding the applicable Maturity Date or redemption date).
SOFR Index means, with respect to any U.S. Government Securities Business Day:
(1) the SOFR Index value as published by the SOFR Administrator as such index appears on the SOFR Administrators Website at 3:00
p.m. (New York time) on such U.S. Government Securities Business Day (the SOFR Index Determination Time); or: (2) if a SOFR
Index value does not so appear as specified in (1) above at the SOFR Index Determination Time, then: (i) if a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, Compounded SOFR
shall be the rate determined pursuant to the SOFR Index Unavailable Provisions described below; or (ii) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR, Compounded SOFR
shall be the rate determined pursuant to the Effect of a Benchmark Transition Event provisions described below. SOFR means the daily secured overnight financing rate as provided by the SOFR Administrator on the SOFR Administrators
Website. SOFR Administrator means the FRBNY (or a successor administrator of SOFR). SOFR Administrators Website means the website of the SOFR Administrator, currently at http://www.newyorkfed.org, or any
successor source. The information contained on such website is not part of this prospectus supplement and is not incorporated in this prospectus supplement by reference. U.S. Government Securities Business Day means any day except for a Saturday, a Sunday or a day on which the Securities Industry
and Financial Markets Association or any successor organization recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities. Notwithstanding anything to the contrary in the indenture or the Notes, if the Company or its designee determines on or prior to the relevant
Reference Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions set forth below under Effect of Benchmark
Transition Event will thereafter apply to all determinations of the rate of interest payable on the Notes. For the avoidance of
doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each interest period will be an annual rate equal to the sum of the
Benchmark Replacement plus 1.967%. SOFR Index Unavailable Provisions If a SOFR Index Start or SOFR Index End is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event
and its related Benchmark Replacement Date have not occurred with respect to SOFR, Compounded SOFR means, for the applicable interest period for which such index is not available, the rate of return on a daily compounded interest
investment calculated in accordance with the formula for SOFR averages, and definitions required for such formula, published on the SOFR Administrators Website at https://www.newyorkfed.org/markets/treasury-repo-reference-rates-information.
For the purposes of this provision, references in the SOFR averages compounding formula and related definitions to calculation period shall be replaced with Observation Period and the words that is, 30-, 90-, or 180- calendar days shall be removed. If SOFR (SOFRi) does not so appear for any day, i in
the Observation Period, SOFRi for such day i shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrators Website.
Effect of Benchmark Transition Event (1) Benchmark Replacement. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred on or prior to the Reference Time in respect of any determination of the Benchmark (as defined below) on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Notes in respect
of such determination on such date and all determinations on all subsequent dates. (2) a Benchmark Replacement, the Company or its
designee will have the right to make Benchmark Replacement Conforming Changes from time to time. (3) Decisions and Determinations. Any
determination, decision or election that may be made by the Company or its designee pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment, or the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection: will be conclusive and binding absent manifest error; if made by the Company, will be made in the Companys sole discretion; if made by the Companys designee, will be made after consultation with the Company, and such designee will
not make any such determination, decision or election to which the Company objects; and notwithstanding anything to the contrary in the indenture or the Notes, shall become effective without consent
from the holders of the Notes or any other party. Any determination, decision or election pursuant to the benchmark
replacement provisions shall be made by the Company or its designee (which may be the Companys affiliate) on the basis as described above, and in no event shall the Calculation Agent, the Trustee or the paying agent be responsible for making
any such determination, decision or election.
In connection with the SOFR definition above, the following definitions apply: Benchmark means, initially, Compounded SOFR, as such term is defined above; provided that if a Benchmark Transition Event and its
related Benchmark Replacement Date have occurred with respect to Compounded SOFR (or the published SOFR Index used in the calculation thereof) or the then-current Benchmark, then Benchmark means the applicable Benchmark Replacement. Benchmark Replacement means the first alternative set forth in the order below that can be determined by the Company or its
designee as of the Benchmark Replacement Date; provided that if the Benchmark Replacement cannot be determined in accordance with clause (1) below as of the Benchmark Replacement Date and the Company or its designee shall have determined that
the ISDA Fallback Rate determined in accordance with clause (2) below is not an industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time, then clause
(2) below shall be disregarded, and the Benchmark Replacement shall be determined in accordance with clause (3) below: (1) the
sum of: (a) an alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment; (2) the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or (3) the sum of: (a) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the
then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment.
Benchmark Replacement Adjustment means the first alternative set forth in the order below that can be determined by the
Company or its designee as of the Benchmark Replacement Date: (1) the spread adjustment (which may be a positive or negative value or
zero), or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; (2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or (3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company or its designee giving due
consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar
denominated floating rate notes at such time.
Benchmark Replacement Conforming Changes means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of interest period, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or
tenors, and other administrative matters) that the Company or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee
decides that adoption of any portion of such market practice is not administratively feasible or if the Company or its designee determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Company or
its designee determines is reasonably practicable). Benchmark Replacement Date means the earliest to occur of the following
events with respect to the then-current Benchmark (including any daily published component used in the calculation thereof): (1) in the
case of clause (1) or (2) of the definition of Benchmark Transition Event, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of
the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or (2) in the case of clause (3) of
the definition of Benchmark Transition Event, the date of the public statement or publication of information referenced therein. For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the
Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination. Benchmark Transition Event means the occurrence of one or more of the following events with respect to the then-current Benchmark
(including the daily published component used in the calculation thereof): (1) a public statement or publication of information by or on
behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide the Benchmark (or such component); (2) a public statement
or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the
administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or
(3) a public statement or publication of information by the regulatory supervisor for the
administrator of the Benchmark announcing that the Benchmark is no longer representative. Calculation Agent means the firm
appointed by the Company prior to the commencement of the floating rate period. The Company or an affiliate of the Companys may assume the duties of the Calculation Agent. The institution serving as Trustee shall have no obligation to serve as
Calculation Agent. ISDA Definitions means the 2006 ISDA Definitions published by ISDA, or any successor thereto, as amended
or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time. ISDA Fallback Adjustment means the spread adjustment (which may be a positive or negative value or zero) that would apply for
derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor. ISDA Fallback Rate means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective
upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment. Reference Time with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR
Index Determination Time, as such time is defined above, and (2) if the Benchmark is not Compounded SOFR, the time determined by the Company or its designee in accordance with the Benchmark Replacement Conforming Changes. Relevant Governmental Body means the Federal Reserve Board and/or the FRBNY, or a committee officially endorsed or convened by the
Federal Reserve Board and/or the FRBNY or any successor thereto. Unadjusted Benchmark Replacement means the Benchmark
Replacement excluding the Benchmark Replacement Adjustment. The interest rate and amount of interest to be paid on the Notes for each
interest period will be determined by the Calculation Agent. All determinations made by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on the Company and the holders of the Notes. So long as
Compounded SOFR is required to be determined with respect to the Notes, there will at all times be a Calculation Agent. In the event that any then acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall
fail duly to establish Compounded SOFR for any interest period, or the Company proposes to remove such Calculation Agent, the Company shall appoint another Calculation Agent.
None of the Trustee, the paying agent and the Calculation Agent shall be under any
obligation (i) to monitor, determine or verify the unavailability or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition
Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been
satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary
or advisable, if any, in connection with any of the foregoing. None of the Trustee, the paying agent and the Calculation Agent shall be
liable for any inability, failure or delay on its part to perform any of its duties set forth in this offering memorandum as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement, including as a result of
any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this offering memorandum and reasonably required
for the performance of such duties. Neither the Trustee nor the Calculation Agent shall be responsible or liable for the actions or
omissions of the Company or its designee, or any failure or delay in the performance of its duties or obligations, nor shall they be under any obligation to oversee or monitor its performance; and each of the Trustee and Calculation Agent shall be
entitled to rely conclusively upon, any determination made, and any instruction, notice, officers certificate, or other instrument or information provided, by the Company or its designee, without independent verification, investigation or
inquiry of any kind by the Trustee or Calculation Agent. Neither the Trustee nor the Calculation Agent shall be under any duty to succeed to, assume or otherwise perform any of the duties of the Company or its designee, or to appoint a successor or
replacement in the event of its resignation or removal, or to remove and replace the Company or its designee in the calculation of the interest rate applicable hereto in the event of a default, breach or failure of performance of the Company or its
designee with respect to its duties and obligations relating to the determination of the applicable interest rate. 2. Paying Agent. Initially, U.S. Bank Trust Company, National Association (the Trustee) will
act as paying agent. The Company may change any paying agent without notice to the holders. 3. Indenture;
Defined Terms. This Note is one of the 4.570% Senior Fixed Rate/Floating Rate Notes due 2033 (the Notes) issued under an indenture dated September 20, 2010, as supplemented by the first supplemental indenture dated
as of April 28, 2022 (as so supplemented, the Base Indenture), by and between the Company and the Trustee (as successor in interest to U.S. Bank National Association), and established pursuant to an Officers Certificate
dated April 29, 2022, issued pursuant to Section 1.02, Section 2.01 and Section 3.01 thereof (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are
Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are
used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the TIA) as in
effect on the date on which the Base Indenture was qualified under the TIA; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, TIA means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of
the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. 4. Denominations;
Transfer; Exchange. The Notes are in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. A holder shall register the transfer or exchange of Notes in accordance with the Indenture.
The Company may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The
Company need not issue, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Company register the transfer or exchange of any Note
selected for redemption in whole or in part. 5. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the holders
of at least a majority in aggregate principal amount of each series of Outstanding Securities affected by such amendment, supplement or waiver. Without notice to or consent of any holder, the parties thereto may amend or supplement the Indenture and
the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the TIA, or make certain other changes that do not adversely
affect the rights of any holder of a Note in any material respect. 6. Redemption. The Notes are redeemable
at the option of the Company, in whole but not in part, on April 29, 2032, the date that is one year prior to the Maturity Date, upon not less than 10 days nor more than 60 days prior notice to holders and the Trustee, at 100% of the
principal amount of the notes (par), plus accrued and unpaid interest thereon to the date of redemption. In addition, the Notes may be redeemed, in whole or in part, on or after the 30th day prior to the Maturity Date at 100% of the principal amount
of the notes (par), plus accrued and unpaid interest thereon to, but not including, the date of redemption. The Company shall provide written notice to the Trustee of the redemption at least two business days prior to the date such notice is
delivered to the holders. The Company will send notice of redemption to DTC.
If fewer than all the Notes are redeemed, the Trustee will select the particular Notes to be
redeemed on a pro-rata basis, by lot or by such other method that the Trustee deems fair and appropriate (and in the case of the Global Securities, in accordance with the applicable procedures of DTC). 7. Liens. As long as any of the Notes are outstanding, the Company will not, and it will not permit any
Subsidiary to, pledge, mortgage or hypothecate or permit to exist any pledge, mortgage or hypothecation or other lien upon any Voting Shares of any Principal Subsidiary Bank to secure any indebtedness for borrowed money without making effective
provisions whereby the Notes then outstanding, and, at the Companys option, any other senior indebtedness ranking equally with the Notes, shall be equally and ratably secured with any and all such indebtedness. Notwithstanding the foregoing, this restriction shall not prohibit the mortgage, pledge, or hypothecation of, or the establishment of a lien
on, any such Voting Shares: (i) to secure indebtedness of the Company or a Subsidiary as part of the purchase
price of such Voting Shares, or incurred prior to, at the time of or within 120 days after acquisition thereof for the purpose of financing all or any part of the purchase price thereof; (ii) by the acquisition by the Company or any Subsidiary of any Voting Shares subject to mortgages, pledges,
hypothecations or other liens existing thereon at the time of acquisition (whether or not the obligations secured thereby are assumed by the Company or such Subsidiary); (iii) by the assumption by the Company or a Subsidiary of obligations secured by mortgages on, pledges or
hypothecations of, or other liens on, any such Voting Shares, existing at the time of the acquisition by the Company or such Subsidiary of such Voting Shares; (iv) by the extension, renewal or refunding (or successive extensions, renewals or refundings), in whole or in part, of
any mortgage, pledge, hypothecation or other lien referred to in the foregoing clauses (i), (ii), and (iii); provided, however, that the principal amount of any and all other obligations and indebtedness secured thereby shall not exceed the
principal amount so secured at the time of each extension, renewal or refunding, and that such extension, renewal or refunding shall be limited to all or a part of the Voting Shares that were subject to the mortgage, pledge, hypothecation or other
lien so extended, renewed or refunded; or (v) by liens to secure loans or other extensions of credit by a
subsidiary bank subject to Section 23A of the Federal Reserve Act or any successor or similar federal law or regulations promulgated thereunder; and
provided, further, that notwithstanding the foregoing, the Company may incur or permit to be incurred or to exist upon such Voting Shares: (x) liens for taxes, assessments or other governmental charges or levies which are not yet due or are
payable without penalty or of which the amount, applicability or validity is being contested by the Company or a Subsidiary in good faith by appropriate proceedings and the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto (segregated to the extent required by generally accepted accounting principles); or (y) the lien of any judgment, if such judgment shall not have remained undischarged, or unstayed on appeal or otherwise, for more than 90 days.
In case the Company or any Subsidiary shall propose to pledge, mortgage or hypothecate any
Voting Shares at any time owned by it to secure any indebtedness, other than as permitted by subdivisions (i) to (v), inclusive, of this Section, the Company will prior thereto give written notice thereof to the Trustee, and will prior to or
simultaneously with such pledge, mortgage or hypothecation, by supplemental indenture delivered to the Trustee, in form satisfactory to it, effectively secure all the Notes equally and ratably with such indebtedness, by pledge, mortgage or
hypothecation of such Voting Shares. Such supplemental indenture shall contain provisions concerning the possession, control, release and substitution of mortgaged and pledged property and securities and other appropriate matters which are required
or permitted by the TIA (as in effect at the date of execution of such supplemental indenture) to be included in a secured indenture qualified under the TIA, and may also contain such additional and mandatory provisions permitted by the TIA as may
be necessary to, or as the Trustee may reasonably request to further secure, such pledge, mortgage or hypothecation. Subsidiary is defined as any corporation, a majority of the outstanding Voting Shares of which are owned, directly or indirectly,
by the Company or one or more of its subsidiaries, or by the Company and one or more of its other subsidiaries. Principal
Subsidiary Bank is defined as Silicon Valley Bank or any other U.S. subsidiary bank of the Company, the consolidated assets of which constitute 20% or more of the Companys consolidated assets or any other subsidiary bank of the Company
designated as a Principal Subsidiary Bank pursuant to a board resolution and set forth in an Officers Certificate delivered to the Trustee. Voting Shares are defined as outstanding shares of capital stock of any class having voting power under ordinary circumstances to
elect at least a majority of the board of directors. 8. Authentication. This Note shall not be valid until
the Trustee manually signs the certificate of authentication on this Note. 9. Abbreviations and Defined
Terms. Customary abbreviations may be used in the name of a holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 10. CUSIP Numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the holders of the Notes. No representation is made as to the accuracy of
such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Governing Law. The laws of the State of New York shall
govern the Indenture and this Note thereof.
ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.) and irrevocably appoint
agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him. Sign exactly as your name appears on the other side of this Note.
Signature Signature Guarantee:
Signature must be guaranteed Signature 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 United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made: Date of Exchange Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
EXHIBIT C Copy of Board Resolutions
Security:
None.
Guarantees:
None.
Miscellaneous:
The terms of the 2028 Notes shall include such other terms as are set forth in the form of Note attached hereto as Exhibit A and in the Base Indenture.
Title:
4.570% Senior Fixed Rate/Floating Rate Notes due 2033.
Issuer:
SVB Financial Group.
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent:
U.S. Bank Trust Company, National Association.
Aggregate Principal Amount at Maturity:
$450,000,000.
Issue Price:
100.000%, of face amount, plus accrued interest, if any, from April 29, 2022.
Maturity Date:
April 29, 2033.
Fixed Interest Rate:
4.570% per annum.
Floating Interest Rate:
Compounded SOFR determined as set forth in the form of 2033 Note attached hereto as Exhibit B, plus 1.967% per annum.
Date from which Interest will Accrue:
April 29, 2022.
Regular Record Dates:
15 calendar days prior to each interest payment date.
Fixed Interest Payment Dates:
April 29 and October 29 of each year, commencing on October 29, 2022 and ending on April 29, 2032.
Floating Interest Payment Dates:
July 29, 2032, October 29, 2032, January 29, 2033 and at the 2033 Notes Maturity Date.
Place of Payment:
The contiguous United States.
Optional Redemption:
The 2033 Notes are redeemable at the option of the Company, in whole but not in part, on April 29, 2032, the date that is one year prior to the 2033 Notes Maturity Date, at 100% of the principal amount of the 2033 Notes
(par), plus accrued and unpaid interest thereon to, but excluding, the date of redemption. In addition, the 2033 Notes may be redeemed, in whole or in part, on or after the 90th day prior to the 2033 Notes Maturity Date at 100% of the principal
amount of the 2033 Notes (par), plus accrued and unpaid interest thereon to, but excluding, the date of redemption.
Sinking Fund:
None.
Conversion:
None.
Covenants:
The Company shall comply with the limitation on liens covenant set forth in Section 7 of the form of 2033 Note attached hereto as Exhibit B and with all of the covenants set forth in the Base Indenture.
Defeasance:
Sections 13.02 and 13.03 of the Base Indenture shall be applicable to the 2033 Notes.
Events of Default:
The Events of Default applicable to the 2033 Notes are as set forth in Section 5.01 of the Base Indenture.
Denominations:
Minimum of $2,000 and integral multiples of $1,000 thereafter.
Global Security:
The 2033 Notes shall be issued in the form of one or more Global Securities in the form attached hereto as Exhibit B.
Security:
None.
Guarantees:
None.
Miscellaneous:
The terms of the Notes shall include such other terms as are set forth in the form of 2033 Note attached hereto as Exhibit B and in the Base Indenture.
SVB FINANCIAL GROUP
By:
Name:
Greg Becker
Title:
President and Chief Executive Officer
By:
Name:
Daniel Beck
Title:
Chief Financial Officer
CUSIP No.: 78486Q AR2
ISIN No.: US78486QAR20
$[ ]
Date:
Your Signature:
Signature must be guaranteed
Amount of
decrease in
principal amount
of this Global Note
Amount of
increase in
principal
amount of
this Global
Note
Principal
amount of
this Global
Note
following
such decrease
(or increase)
Signature of
authorized
officer of
Trustee
No. [ ]
CUSIP No.: 78486Q AS0
ISIN No.: US78486QAS03
$[ ]
as Trustee
By:
Authorized Signatory
Date:
Your Signature:
principal amount of this
Global
Note
principal amount of this
Global
Note
Global Note following
such
decrease (or
increase)
officer of
Trustee
Exhibit 5.1
[Letterhead of Sullivan & Cromwell LLP]
April 29, 2022
SVB Financial Group,
3003 Tasman Drive,
Santa Clara, California 95054.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the Act) of (1) $350,000,000 principal amount of 4.345% Senior Fixed Rate/Floating Rate Notes due 2028 (the 2028 Notes) and (2) $450,000,000 aggregate principal amount of 4.570% Senior Fixed Rate/Floating Rate Notes due 2033 (the 2033 Notes, and together with the 2028 Notes, the Securities) of SVB Financial Group, a Delaware corporation (the Company), we, as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion, the Securities constitute valid and legally binding obligations of the Company, 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.
In rendering the foregoing opinion, we are expressing no opinion as to Federal or state laws relating to fraudulent transfers and we are not passing upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale of the Securities.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on factual information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Indenture under which the Securities were issued has been duly authorized, executed and delivered by the Trustee thereunder, an assumption which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement relating to the Securities and to the reference to us under the caption Validity of the Notes in the Prospectus Supplement relating to the Securities, dated April 26, 2022, which is a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours, |
/s/ SULLIVAN & CROMWELL LLP |