As filed with the Securities and Exchange Commission on August 8, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERIS BANCORP
(Exact name of registrant as specified in its charter)
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Georgia
(State or other jurisdiction of
incorporation or organization)
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58-1456434
(I.R.S. Employer
Identification Number)
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3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia 30305
(404) 639-6500
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
H. Palmer Proctor, Jr.
Chief Executive Officer
Ameris Bancorp
3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia 30305
(404) 639-6500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Lori A. Gelchion, Esq.
Smith, Gambrell & Russell, LLP
1105 W. Peachtree St. NE
Suite 1000
Atlanta, Georgia 30309
(404) 815-3552
(404) 815-3509 (facsimile)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Purchase Units
Units
We may offer and sell from time to time, together or separately, in one or more offerings, any combination of the securities listed above. The securities we may offer may be convertible into or exchangeable for other securities. The securities listed above may be offered by us and/or may be offered and sold, from time to time, by one or more selling shareholders to be identified in the future. This prospectus provides a general description of these securities. Each time we offer any securities pursuant to this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. You should read this prospectus, the information incorporated by reference into this prospectus, the accompanying prospectus supplement, including any information incorporated by reference therein, and any free writing prospectus carefully before you invest in the securities described in the applicable prospectus supplement.
Our common stock is traded on the Nasdaq Global Select Market under the symbol “ABCB.”
We may offer and sell these securities to or through one or more underwriters, dealers and agents, directly to purchasers or through a combination of these methods, on a continuous or delayed basis from time to time. The names of any underwriters, dealers or agents involved in the distribution of our securities, their compensation and any option they hold to acquire additional securities will be described in the applicable prospectus supplement. See “Plan of Distribution.” Net proceeds from the sale of securities will be set forth in the applicable prospectus supplement.
This prospectus may not be used to sell securities unless accompanied by the applicable prospectus supplement.
Investing in our securities involves risks. You should carefully consider the “Risk Factors” section beginning on page 5 of this prospectus and the risk factors set forth in the documents incorporated by reference into this prospectus together with any information set forth in the “Risk Factors” section of any applicable prospectus supplement before making any decision to invest in our securities.
These securities are not savings accounts, deposits or other obligations of any bank and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency.
Neither the U.S. Securities and Exchange Commission, any state securities commission, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System nor any other regulatory body has approved or disapproved of these securities or determined if this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 8, 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer,” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”). Under this shelf registration statement, we may offer and sell from time to time any combination of our common stock, preferred stock, debt securities, depositary shares, warrants, purchase contracts, purchase units and units in one or more offerings up to an indeterminate total dollar amount. The preferred stock, debt securities, warrants, purchase contracts, purchase units and units may be convertible into or exercisable or exchangeable for common or preferred stock or other securities issued by us or debt or equity securities issued by one or more other entities.
This prospectus provides you with a general description of the securities we may offer. Each time we offer and sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under “Where You Can Find More Information.” We may also prepare free writing prospectuses that describe particular securities. Any free writing prospectus should also be read in connection with this prospectus and with any prospectus supplement referred to therein. For purposes of this prospectus, any reference to an applicable prospectus supplement may also refer to a free writing prospectus, unless the context otherwise requires.
The registration statement of which this prospectus is a part, including the exhibits to the registration statement, contains additional information about us and the securities offered under this prospectus. The registration statement can be read at the SEC website or at the SEC offices mentioned under “Where You Can Find More Information.”
The distribution of this prospectus and any applicable prospectus supplement and the offering of the securities in certain jurisdictions may be restricted by law. Persons into whose possession this prospectus and any applicable prospectus supplement come should inform themselves about and observe any such restrictions. This prospectus and any applicable prospectus supplement do not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation.
Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “we,” “our,” “us,” “ourselves” and “the Company” refer to Ameris Bancorp, a Georgia corporation, and its consolidated subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov.
The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have been incorporated by reference, by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in all cases, if you are considering whether to rely on information contained in this prospectus or information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later. We incorporate by reference the documents listed below (File No. 001-13901), which are considered to be a part of this prospectus:
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed with the SEC on May 8, 2023 and August 8, 2023, respectively;
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All reports and other documents we subsequently file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until our offering is completed will also be incorporated by reference into this prospectus and deemed to be part hereof (other than any information furnished to, rather than filed with, the SEC, unless expressly stated otherwise therein). The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus commencing on the date on which the document is filed.
Any documents incorporated by reference into this prospectus are available without charge to you on the Internet at www.amerisbank.com or by contacting our Corporate Secretary at Ameris Bancorp, 3490 Piedmont Road N.E., Suite 1550, Atlanta, Georgia 30305, Attention: Corporate Secretary or (404) 639-6500. The reference to our website is not intended to be an active link and the information on our website is not, and you must not consider the information to be, a part of this prospectus.
You should rely only on the information contained or incorporated by reference into this prospectus and the applicable prospectus supplement. Neither we nor any underwriter or agent have authorized anyone else to provide you with additional or different information. We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in jurisdictions where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement or any document incorporated by reference is accurate as of any date other than the dates of the applicable documents.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus, any accompanying prospectus supplement, and the documents incorporated by reference herein and therein that are not statements of historical fact constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. These forward-looking statements reflect our current views with respect to, among other things, future events and our future financial performance. Such statements are typically, but not exclusively, identified by the use in the statements of words or phrases such as “aim,” “anticipate,” “estimate,” “expect,” “goal,” “guidance,” “intend,” “is anticipated,” “is estimated,” “is expected,” “is intended,” “objective,” “plan,” “projected,” “projection,” “will affect,” “will be,” “will continue,” “will decrease,” “will grow,” “will impact,” “will increase,” “will incur,” “will reduce,” “will remain,” “will result,” “would be,” variations of such words or phrases (including where the word “could,” “may” or “would” is used rather than the word “will” in a phrase) and similar words and phrases indicating that the statement addresses some future result, occurrence, plan or objective. Because forward-looking statements relate to future results and occurrences, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Our actual results may differ materially from those contemplated by the forward-looking statements, which are neither statements of historical fact nor guarantees or assurances of future performance. Many possible events or factors could affect our future financial results and performance and could cause those results or performance to differ materially from those expressed in the forward-looking statements. These possible events or factors include:
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The effects of changes in interest rates on the levels, composition and costs of deposits, loan demand, and the values and liquidity of loan collateral, securities and interest-sensitive assets and liabilities;
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The effects of future economic, business and market conditions and changes, including seasonality;
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Legislative and regulatory changes, including changes in banking, securities and tax laws, regulations and policies and their application by our regulators;
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Changes in accounting rules, practices and interpretations;
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Changes in borrower credit risks and payment behaviors;
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Changes in the availability and cost of credit and capital in the financial markets;
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Changes in the prices, values and sales volumes of residential and commercial real estate;
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The effects of concentrations in our loan portfolio;
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Our ability to resolve nonperforming assets;
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The failure of assumptions and estimates underlying the establishment of reserves for possible credit losses and other estimates and valuations;
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Changes in technology or products that may be more difficult, costly or less effective than anticipated;
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The risks of any acquisitions, mergers or divestitures which we may undertake in the future, including the related time and costs of implementing such transactions, integrating operations as part of these transactions and possible failures to achieve expected gains, revenue growth, expense savings and/or other results from such transactions; and
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The effects of hurricanes, floods, tornados or other natural disasters, geopolitical events, acts of war or terrorism or other hostilities, public health crises, pandemics or other catastrophic events beyond our control.
We urge you to consider carefully all of these risks, uncertainties and other factors, as well as those risks discussed in this prospectus, in any accompanying prospectus and in the documents incorporated herein and therein by reference, in evaluating all such forward-looking statements made by us. As a result of these and other matters, including changes in facts, assumptions not being realized or other factors, the actual results relating to the subject matter of any forward-looking statement may differ materially from the anticipated results expressed or implied in any forward-looking statement. Any forward-looking statement made in this prospectus, any accompanying prospectus or in any report, filing, document or information
incorporated by reference into this prospectus supplement or any accompanying prospectus speaks only as of the date on which it is made. We undertake no obligation to update any such forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by law.
A forward-looking statement may include a statement of the assumptions or bases underlying the forward-looking statement. We believe that these assumptions or bases have been chosen in good faith, and that they are reasonable. However, we caution you that assumptions as to future occurrences or results almost always vary from actual future occurrences or results, and the differences between assumptions and actual occurrences and results can be material. Therefore, we caution you not to place undue reliance on the forward-looking statements contained in this prospectus, any accompanying prospectus supplement or in any report, filing, document or information incorporated by reference herein or therein.
THE COMPANY
We are a financial holding company registered under the Bank Holding Company Act of 1956, as amended (the “BHC Act”). We are headquartered in Atlanta, Georgia. As of June 30, 2023, we had, on a consolidated basis, total assets of approximately $25.8 billion, total loans (net of allowances for loan losses) of approximately $20.2 billion, total deposits of approximately $20.4 billion and shareholders’ equity of approximately $3.3 billion.
We conduct substantially all of our operations through Ameris Bank, a Georgia state-chartered bank and our wholly owned banking subsidiary. At June 30, 2023, Ameris Bank operated 164 branches in select markets in Georgia, Alabama, Florida, North Carolina and South Carolina. Our business model capitalizes on the efficiencies of a large financial services company, while still providing the community with the personalized banking service expected by our customers. We manage Ameris Bank through a balance of decentralized management responsibilities and efficient centralized operating systems, products and loan underwriting standards. Our board of directors and senior managers establish corporate policy, strategy and administrative policies. Within our established guidelines and policies, the banker closest to the customer responds to the differing needs and demands of his or her unique market.
We seek to increase our presence and grow the “Ameris” brand in the markets that we currently serve in Georgia, Alabama, Florida, North Carolina and South Carolina and in neighboring communities that present attractive opportunities for expansion. Management has pursued this objective through a prudent operating strategy and an acquisition-oriented growth strategy. Our community banking philosophy emphasizes personalized service and building broad and deep customer relationships, which has historically provided us with a substantial base of low cost core deposits. Our markets are managed by senior level, experienced decision makers in a decentralized structure that differentiates us from our larger competitors. Management believes that this structure, along with involvement in and knowledge of our local markets, will continue to provide growth opportunities and assist in managing risk throughout our Company.
We were incorporated in 1980. Our common stock is traded on the Nasdaq Global Select Market under the symbol “ABCB.” Our principal executive offices are located at 3490 Piedmont Road N.E., Suite 1550, Atlanta, Georgia 30305, and our telephone number is (404) 639-6500. Our website is www.amerisbank.com. The reference to our website is not intended to be an active link and the information on our website is not, and you must not consider the information to be, a part of this prospectus.
Additional information about us and our subsidiaries is included in documents incorporated by reference in this prospectus. See “Where You Can Find More Information.”
RISK FACTORS
Investing in securities issued by us involves certain risks. Before you invest in any securities issued by us, in addition to the other information included in, or incorporated by reference into, this prospectus, you should carefully consider the risk factors contained in Part I, Item 1A under the section “Risk Factors” and elsewhere in our Annual Report on Form 10-K for the year ended December 31, 2022, which is incorporated by reference into this prospectus, as updated by our annual or quarterly reports for subsequent fiscal years or fiscal quarters that we file with the SEC and that are so incorporated. See “Where You Can Find More Information” for information about how to obtain a copy of these documents. You should also carefully consider the risks and other information that may be contained in, or incorporated by reference into, any prospectus supplement relating to specific offerings of securities.
USE OF PROCEEDS
We intend to use the net proceeds from the sales of the securities in the manner and for the purposes set forth in the applicable prospectus supplement, which may include general corporate purposes.
DESCRIPTION OF COMMON STOCK
We may issue, separately or together with, or upon conversion, exercise or exchange of other securities, shares of our common stock as set forth in the applicable prospectus supplement. The following section describes the material features and rights of our common stock. This summary does not purport to be exhaustive and is qualified in its entirety by reference to our Restated Articles of Incorporation (our “Articles of Incorporation”) and our Bylaws, as amended and restated (our “Bylaws”), each of which is incorporated by reference into the registration statement of which this prospectus is a part, and to applicable Georgia law.
Authorized and Outstanding Shares
Our Articles of Incorporation authorize the issuance of up to 200,000,000 shares of common stock. A total of 69,139,783 shares were issued and outstanding as of June 30, 2023. On June 30, 2023, 2,379,382 shares were reserved for future issuance under our stock compensation plans.
You should note that the rights and privileges of holders of our common stock are subject to any preferences that our board of directors may set for any series of preferred stock that we may issue in the future. These preferences may relate to voting, dividend and liquidation rights, among other things.
Voting Rights
Holders of shares of our common stock are entitled to one vote per share on all matters submitted to a vote of shareholders, including the election of directors. Shareholders do not have cumulative voting rights.
Election of Directors
Our Articles of Incorporation and Bylaws provide that each member of our board of directors is elected at each annual meeting of shareholders to serve until the next annual meeting of shareholders and until his or her successor is duly elected and qualified or until his or her earlier resignation, removal from office or death.
Our Bylaws provide that each director shall be elected by the vote of the majority of the votes cast with respect to that director’s election at any meeting for the election of directors at which a quorum is present; provided, however, that the directors shall be elected by the vote of a plurality of votes cast in connection with the election of directors at any meeting of shareholders with respect to which the number of director nominees exceeds the number of directors to be elected ten days before the mailing of our definitive proxy statement (a “contested election”). As a result, each director elected by a majority of the votes cast with respect to the shares of common stock present in person or represented by proxy and entitled to vote at an annual meeting must receive a greater number of such shares voted “for” such director than the number of such shares voted “against” such director. Except with respect to a contested election, if a nominee for director is not elected and the nominee is an incumbent director, then the director shall promptly tender his or her resignation to our board of directors, the effectiveness of which shall be conditioned upon, and subject to, acceptance by our
board of directors. In that situation, the corporate governance and nominating committee of our board of directors would make a recommendation to our board of directors about whether to accept or reject the resignation, or whether to take other action. Within 90 days from the date the election results are certified, our board of directors will act on the corporate governance and nominating committee’s recommendation and will publicly disclose its decision and the rationale behind it.
Dividends
Holders of our common stock are entitled to receive dividends only if, as and when declared by our board of directors out of funds legally available, subject to certain restrictions imposed by state and federal laws and the preferential dividend rights of any preferred stock then outstanding.
Under the Georgia Business Corporation Code (the “GBCC”), we may not pay a dividend if, after paying such dividend: (i) we would not be able to pay our debts as they become due in the ordinary course of business; or (ii) our total assets would be less than the sum of our total liabilities plus the amount that would be needed to satisfy the preferential rights upon dissolution of shareholders, if any, whose rights are superior to those receiving the distribution.
As a bank holding company, dividends paid by us also are subject to federal law limitations. The Board of Governors of the Federal Reserve System (the “Federal Reserve”) has adopted the policy that a bank holding company should pay cash dividends only to the extent that the company’s net income for the past year is sufficient to cover the cash dividends and that the company’s rate of earning retention is consistent with the company’s capital needs, asset quality and overall financial condition. In addition, a bank holding company is required to consult with or notify the Federal Reserve prior to purchasing or redeeming its outstanding equity securities in certain circumstances, including if the gross consideration for the purchase or redemption, when aggregated with the net consideration paid by the company for all such purchases or redemptions during the preceding 12 months, is equal to 10% or more of the company’s consolidated net worth. A bank holding company that is well-capitalized, well-managed and not the subject of any unresolved supervisory issues is exempt from this notice requirement.
As a bank holding company, our ability to pay dividends is substantially dependent on the ability of Ameris Bank to transfer funds to us in the form of dividends, loans and advances. Accordingly, our declaration and payment of dividends depends upon Ameris Bank’s earnings and financial condition, including its regulatory capital levels, as well as upon general economic conditions and other factors.
Under Georgia law, the prior approval of the Georgia Department of Banking and Finance is required before any cash dividends may be paid by a Georgia bank, such as Ameris Bank if: (i) total classified assets at the most recent examination of such bank exceed 80% of the equity capital (which includes the reserve for loan losses) of such bank; (ii) the aggregate amount of dividends declared or anticipated to be declared in the calendar year exceeds 50% of the net profits (after taxes but before dividends) for the previous calendar year; or (iii) the ratio of equity capital to adjusted total assets is less than 6%. As of June 30, 2023, there was approximately $111 million of retained earnings of Ameris Bank available for payment of cash dividends under applicable regulations without obtaining regulatory approval.
Under federal law, the ability of an insured depository institution such as Ameris Bank to pay dividends or other distributions is restricted or prohibited if: (i) the institution would fail to satisfy the regulatory capital conservation buffer requirement following the distribution; (ii) the distribution would cause the institution to become undercapitalized; or (iii) the institution is in default of its payment of deposit insurance assessments to the Federal Deposit Insurance Corporation. In addition, the Federal Deposit Insurance Corporation has the authority to prohibit Ameris Bank from engaging in an unsafe or unsound banking practice. The payment of dividends could, depending upon the financial condition of Ameris Bank, be deemed to constitute an unsafe or unsound practice in conducting Ameris Bank’s business.
Liquidation and Other Rights
Our shareholders are entitled to share ratably in our assets legally available for distribution to our shareholders in the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, after payment of, or adequate provision for, all of our known debts and liabilities.
Holders of shares of our common stock have no preference, conversion or exchange rights and have no preemptive rights to subscribe for any of our securities. There are no sinking fund provisions applicable to our common stock. All outstanding common stock is, when issued against payment therefor, fully paid and non-assessable. Such shares are not redeemable at the option of us or holders thereof. Finally, subject to the rules of the Nasdaq Global Select Market, our board of directors may issue additional shares of our common stock or rights to purchase shares of our common stock without the approval of our shareholders.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare, Inc.
Anti-Takeover Provisions of Our Articles of Incorporation and Bylaws and the GBCC
Our Articles of Incorporation and Bylaws contain provisions that could make more difficult an acquisition of us by means of a tender offer, a proxy contest or otherwise. These provisions are expected to discourage specific types of coercive takeover practices and inadequate takeover bids as well as to encourage persons seeking to acquire control to first negotiate with our board of directors. Although these provisions may have the effect of delaying, deferring or preventing a change in control, we believe that the benefits of increased protection through the potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweighs the disadvantages of discouraging these proposals because, among other things, negotiation of such proposals could result in an improvement of their terms.
The GBCC also provides additional provisions which, if adopted by our board of directors, would further inhibit certain unsolicited acquisition proposals.
Shareholder Action Through Written Consent. Our Bylaws only provide for shareholder action by written consent in lieu of a meeting if all shareholders entitled to vote on such action sign such consent.
Nominations to Our Board of Directors. Our Articles of Incorporation and Bylaws provide that nominations for the election of directors may be made by our board of directors or by any shareholder entitled to vote generally in the election of directors. Our Bylaws establish an advance notice procedure for shareholder nominations to our board of directors. A shareholder may only make a nomination to our board of directors if he or she complies with the advance notice and other procedural requirements of our Bylaws and is entitled to vote on such nomination at the meeting.
Removal of Directors; Number of Directors; Board of Directors Vacancies. Our Articles of Incorporation and Bylaws provide that: (i) members of our board of directors may only be removed for cause and then only with a vote of at least a majority of the outstanding shares entitled to vote in the election of directors; and (ii) the successor for the removed director may be elected by shareholders at the same or any subsequent meeting of shareholders; provided, that if the vacancy created by such removal is not so filled within 60 days after such removal, then our board of directors may fill the vacancy.
Our Bylaws also provide that: (i) our board of directors may increase or decrease the number of directors; and (ii) only our board of directors may fill vacancies and newly created directorships resulting from an increase in the authorized number of members of our board of directors.
The overall effect of these provisions may be to prevent a shareholder or other person or entity from seeking to acquire control of us by removing incumbent directors, or increasing the number of directors on our board of directors, and filling the resulting vacancies with designated nominees.
Authorized But Unissued Stock. The authorized but unissued shares of the common stock and preferred stock are available for future issuance without shareholder approval. These additional shares may be used for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved
shares of the common stock and preferred stock may enable our board of directors to issue shares to persons friendly to current management, which could render more difficult or discourage any attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise, and thereby protect the continuity of our management.
Georgia “Fair Price” Statute. Sections 14-2-1110 through 14-2-1113 of the GBCC (the “Fair Price Statute”) generally restrict a company from entering into certain business combinations (as defined in the GBCC) with an interested shareholder unless:
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The transaction is unanimously approved by the continuing directors who must constitute at least three members of the board of directors at the time of such approval; or
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The transaction is recommended by at least two-thirds of the continuing directors and approved by a majority of the shareholders excluding the interested shareholder.
Such statute further provides that the approval requirements described above do not apply to a business combination if the terms of the transaction meet specified fair pricing criteria and certain other tests.
Georgia “Business Combination” Statute. Sections 14-2-1131 through 14-2-1133 of the GBCC (the “Business Combination Statute”) generally restrict a company from entering into certain business combinations (as defined in the GBCC) with an interested shareholder for a period of five years after the date on which such shareholder became an interested shareholder unless:
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The transaction is approved by the board of directors of the company prior to the date the person became an interested shareholder;
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The interested shareholder acquires at least 90% of the company’s voting stock in the same transaction (calculated pursuant to GBCC Section 14-2-1132) in which such person became an interested shareholder; or
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Subsequent to becoming an interested shareholder, the shareholder acquires at least 90% (calculated pursuant to GBCC Section 14-2-1132) of the company’s voting stock and the business combination is approved by the holders of a majority of the voting stock entitled to vote on the matter (excluding the stock held by the interested shareholder and certain other persons pursuant to GBCC Section 14-2-1132).
The GBCC provides that the restrictions set forth in the Fair Price Statute and the Business Combination Statute will not apply unless the bylaws of the corporation specifically provide that these provisions of the GBCC are applicable to the corporation (and in certain other situations). We have not elected to be covered by such statutes, but we could do so by action of our board of directors, without a vote by shareholders except as may be prohibited by law, at any time.
Restrictions on Ownership
The ability of a third party to acquire us is limited under applicable U.S. banking laws and regulations. The BHC Act generally prohibits any company that is not engaged in banking activities and activities that are permissible for a bank holding company or a financial holding company from acquiring “control” of us. Control is generally defined as ownership of 25% or more of the voting stock of a company, the ability to control the election of a majority of the company’s board of directors or the other exercise of a “controlling influence” over a company. For any existing bank holding company, under the BHC Act such bank holding company must obtain the prior approval of the Federal Reserve before acquiring 5% or more of our voting stock. In addition, the Change in Bank Control Act of 1978, as amended (the “CIBC Act”), prohibits a person (including a natural person) or group of persons from acquiring “control” of a bank holding company unless the Federal Reserve has been notified and has not objected to the transaction. Under a rebuttable presumption established by the Federal Reserve, the acquisition of 10% or more of a class of voting stock of a bank holding company with a class of securities registered under Section 12 of the Exchange Act, such as us, or where no other person holds a greater percentage of that class of voting stock immediately after the transaction, constitutes acquisition of control of the bank holding company under the CIBC Act.
DESCRIPTION OF PREFERRED STOCK
The following section describes the general terms of our preferred stock that we may issue. The specific terms of any series of preferred stock will be described in the prospectus supplement relating to that series of preferred stock. The terms of any series of preferred stock may differ from the terms described below. Certain provisions of our preferred stock described below and in any prospectus supplement are not complete. The summary does not purport to be exhaustive and is qualified in its entirety by reference to our Articles of Incorporation and our Bylaws, each of which is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and to applicable Georgia law.
Authorized Shares
Under our Articles of Incorporation, our board of directors is authorized, without shareholder approval, to adopt resolutions providing for the issuance of up to 5,000,000 shares of preferred stock, in one or more series, subject to the provisions of our Articles of Incorporation, applicable law and the rules of the Nasdaq Global Select Market.
As of the date of this prospectus, 52,000 shares of preferred stock have been designated as Fixed Rate Cumulative Perpetual Preferred Stock, Series A. All of such shares have been repurchased and redeemed pursuant to the terms of such series and have been cancelled and are no longer outstanding. No other series of preferred stock has been designated, and no other shares of our preferred stock have been issued.
General
Our board of directors may fix the designations, preferences, limitations, conversion rights, cumulative, relative, participating, optional or other rights, including voting rights, qualifications, limitations or restrictions, of each series of preferred stock.
The prospectus supplement relating to a particular series of preferred stock will contain a description of the specific terms of that series, including, as applicable:
•
The title, designation and number of shares of the series of preferred stock;
•
The price at which the preferred stock will be issued;
•
The dividend rate, or the amount or method of calculation of dividends, the payment dates for dividends, whether dividends will be cumulative or non-cumulative, and, if cumulative, the date or dates from and after which dividends will begin to accumulate;
•
Whether the shares will be convertible or exchangeable into shares of our common or preferred stock, and, if so, the price and other terms and conditions of conversion or exchange;
•
Whether or not the shares of preferred stock will be redeemable and, if redeemable, the redemption price (or the method for calculating the redemption price) and the other terms and conditions relating to the redemption of the shares of preferred stock (including any restriction on redemption when the payment of dividends is in arrears);
•
The amount, if any, payable on the shares of such series of preferred stock in the event of our voluntary or involuntary liquidation, dissolution or winding up;
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Any requirements that a sinking fund or purchase fund be provided for the redemption or purchase of the shares of such series;
•
The exchange or market, if any, where the preferred stock will be listed or traded; and
•
Any other powers, preferences and relative participating, optional or other special rights, or qualifications, limitations or restrictions thereon, to the extent not inconsistent with the terms of our Articles of Incorporation.
Upon the issuance and payment for shares of preferred stock, the shares will be fully paid and nonassessable. Except as otherwise may be specified in the prospectus supplement relating to a particular series of preferred stock, holders of preferred stock will not have any preemptive or subscription rights to acquire any class or series of our capital stock.
The rights of holders of our preferred stock may be adversely affected in the future by the rights of holders of any new shares of preferred stock that may be issued by us in the future. Our board of directors may cause shares of preferred stock to be issued in public or private transactions for any proper corporate purposes. Proper corporate purposes include, among other things, issuances to obtain additional financing in connection with acquisitions, in connection with a shareholder rights plan or otherwise.
Rank
Unless otherwise specified in the prospectus supplement relating to a particular series of preferred stock, each series of preferred stock will rank on an equal basis with each other series of our preferred stock and prior to our common stock as to dividends and any distribution of our assets.
Dividends
Holders of each series of preferred stock will be entitled to receive cash dividends only if, as and when declared by our board of directors out of funds legally available for dividends. The prospectus supplement relating to any series of preferred stock will describe the dividend rates and the dates on which we will pay dividends as to such series of preferred stock. Dividends on any series of preferred stock may be fixed or variable, or both, and may be cumulative or non-cumulative, in each case as described in the applicable prospectus supplement.
Our board of directors may not declare, pay or set apart funds for payment of dividends on a particular series of preferred stock unless full dividends on any other series of preferred stock that ranks equally with or senior to such series of preferred stock have been paid or sufficient funds have been set aside for payment. If dividends are not paid in full to each series of preferred stock, then we will declare any dividends pro rata among the preferred stock of each series and any series of preferred stock that ranks equally with or senior to such series of preferred stock. A “pro rata” declaration means that the dividends we declare per share on each series of preferred stock will bear the same relationship to each other that the full accrued dividends per share on each series of the preferred stock bear to each other.
Unless all dividends on the preferred stock of each series issued have been paid in full, we will not declare or pay any dividends, or set aside sums for payment of dividends or distributions, on any common stock or on any class of security ranking junior to a series of preferred stock, except for dividends or distributions paid in the form of securities ranking junior to the preferred stock. We will also not redeem, purchase or otherwise acquire any securities ranking junior to a series of preferred stock as to dividends or liquidation preferences, except by conversion into or exchange for stock ranking junior to the series of preferred stock.
Conversion or Exchange
The applicable prospectus supplement for any series of preferred stock will state the terms, if any, on which shares of that series are convertible or exchangeable into shares of our common stock or another series of our preferred stock. The terms of any such conversion or exchange (and any such preferred stock issuable in connection therewith) will be described in the prospectus supplement relating to such series of preferred stock.
Redemption
If so specified in the applicable prospectus supplement, a series of preferred stock may be redeemable at any time, in whole or in part, at our option or at the option of the holder thereof, and may be mandatorily redeemable or convertible. The applicable prospectus supplement will describe the restrictions, if any, on the repurchase or redemption by us of any series of our preferred stock. Any partial redemptions of preferred stock will be made in a way that our board of directors decides is equitable.
On the redemption date of shares of preferred stock called for redemption or upon our earlier call and deposit of the redemption price, all rights of holders of the preferred stock called for redemption will terminate, except for the right to receive the redemption price.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, holders of each series of preferred stock will have the right to receive distributions upon liquidation in the amount described in the applicable prospectus supplement relating to each series of preferred stock, plus an amount equal to any accrued but unpaid dividends. These distributions will be made before any distribution is made on our common stock or on any securities ranking junior to such preferred stock.
If the liquidation amounts payable to holders of preferred stock of all series ranking on a parity regarding liquidation are not paid in full, the holders of the preferred stock of these series will have the right to a pro rata portion of our available assets up to the full liquidation preference. Holders of these series of preferred stock or such other securities will not be entitled to any other amounts from us after they have received their full liquidation preference.
Voting Rights
The holders of shares of preferred stock will have no voting rights, except:
•
As otherwise stated in the applicable prospectus supplement;
•
As otherwise stated in the articles of amendment to our Articles of Incorporation establishing the series of such preferred stock; and
•
As required by applicable law.
Under regulations adopted by the Federal Reserve, if the holders of the preferred stock of any series become entitled to vote for the election of directors, whether because dividends on the preferred stock of such series are in arrears or otherwise, preferred stock of such series could be deemed a “class of voting securities.” In this instance, a holder of 25% or more of the preferred stock of such series likely would then be subject to regulation as a bank holding company in accordance with the BHC Act. In addition, a holder of such series that exercises a “controlling influence” over us, as determined by the Federal Reserve based on the holder’s total equity investment and other relevant facts and circumstances, could also be subject to regulation under the BHC Act. To the extent a series of the preferred stock is deemed a class of voting securities, acquisitions of shares of such series of preferred stock may be subject to the requirements described above under “Description of Common Stock — Restrictions on Ownership.”
Transfer Agent and Registrar
The applicable prospectus supplement will name the transfer agent, registrar, dividend paying agent and depositary, if any, for shares of each series of preferred stock.
DESCRIPTION OF DEBT SECURITIES
We may issue senior debt securities or subordinated debt securities. Senior debt securities will be issued under a senior debt indenture (the “senior indenture”) between us and a senior trustee to be named in the applicable prospectus supplement. Subordinated debt securities will be issued under the Subordinated Debt Indenture, dated as of March 13, 2017, between us and Wilmington Trust, National Association, as subordinated trustee (the “subordinated indenture”), and the related supplemental indenture for such subordinated debt securities. The senior indenture and the subordinated indenture are collectively referred to in this prospectus as the “indentures” and individually referred to in this prospectus as an “indenture.” The indentures are subject to and governed by the Trust Indenture Act of 1939. The senior indenture and the subordinated indenture (or forms thereof) are included as exhibits to the registration statement of which this prospectus is a part. We use the term “trustee” to refer to either the senior trustee or a subordinated trustee, as applicable.
The following briefly describes the general terms and provisions of the debt securities which may be offered and the indentures governing them. The particular terms of the debt securities offered, and the extent, if any, to which these general provisions may apply to the debt securities so offered, will be described in more detail in the applicable prospectus supplement relating to those securities.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities and any supplemental indenture applicable thereto. We urge you to read the applicable prospectus supplement that is related to the debt securities that we sell under this prospectus, as well as the complete indenture, and any supplements thereto, that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
Unless otherwise provided in a supplemental indenture, our board of directors will set the particular terms of each series of debt securities, which will be described in a prospectus supplement relating to such series. We can issue an unlimited amount of debt securities under the indenture, in one or more series with the same or various maturities, at par, at a premium or at a discount. Among other things, the prospectus supplement relating to a series of debt securities being offered will address the following terms of the debt securities:
•
The title of the debt securities;
•
The price(s), expressed as a percentage of the principal amount, at which we will sell the debt securities;
•
Whether the debt securities will be senior or subordinated, and, if subordinated, any such provisions that are different from those described below under “Subordinated Debt Securities”;
•
Any limit on the aggregate principal amount of the debt securities;
•
The date(s) when principal payments are due on the debt securities;
•
The interest rate(s) on the debt securities, which may be fixed or variable, per annum or otherwise, and the method used to determine the rate(s), the dates on which interest will begin to accrue and be payable, and any regular record date for the interest payable on any interest payment date;
•
The place(s) where principal of, premium and interest on the debt securities will be payable;
•
Provisions governing redemption of the debt securities, including any redemption or purchase requirements pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the redemption price and other detailed terms and provisions of such repurchase obligations;
•
The denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple in excess thereof;
•
Whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
•
The portion of the principal of the debt securities payable upon declaration of acceleration of the maturity date, if other than the entire principal amount;
•
Any additional or modified events of default from those described in this prospectus or in the indenture and any change in the acceleration provisions described in this prospectus or in the indenture;
•
Any additional or modified covenants from those described in this prospectus or in the indenture with respect to the debt securities;
•
Any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; and
•
Any other specific terms of such debt securities.
In addition, we may issue convertible debt securities. Any conversion provisions of a particular series of debt securities will be set forth in the officer’s certificate or supplemental indenture related to that series of debt securities and will be described in the relevant prospectus supplement. To the extent applicable,
conversion may be mandatory, at the option of the holder or at our option, in which case the number of shares of common or preferred stock to be received upon conversion would be calculated as of a time and in the manner stated in the prospectus supplement.
The applicable prospectus supplement will provide an overview of the U.S. federal income tax considerations and other special considerations applicable to any debt securities we offer for sale.
Transfer and Exchange
As described in the applicable prospectus supplement, each debt security will be represented by either a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) or one or more global securities registered in the name of a depositary, or its nominee, in the aggregate principal amount of the series of debt securities.
Certificated Debt Securities. You can transfer certificated debt securities (and the right to receive the principal of, premium and interest thereon) by presenting a request to the registrar or co-registrar to transfer or exchange those certificated debt securities and the registrar shall transfer or make the exchange if its requirements for such transactions are met.
You may transfer or exchange certificated debt securities at the office or offices specified by us in accordance with the terms of the indenture. There is no service charge, but we may require payment of a sum sufficient to cover any taxes or other governmental charges payable in connection with a transfer or exchange.
Global Debt Securities. Each indenture provides that we may issue debt securities in global form. If any series of debt securities is issued in global form, then the prospectus supplement will describe any circumstances under which beneficial owners of interests in any of those global debt securities may exchange their interests for debt securities of that series and of like tenor and principal amount in any authorized form and denomination.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions affording holders of the debt securities protection, such as prior consent or acceleration rights, in the event we agree to a change in control or a highly leveraged transaction (whether or not such transaction results in a change in control), which could adversely affect holders of debt securities.
Covenants
The applicable prospectus supplement will describe any restrictive covenants applicable to any debt securities we offer for sale.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into any other person or convey, transfer or lease all or substantially all of our properties and assets to any person, and we may not permit any other person to consolidate with or merge into us or to convey, transfer or lease all or substantially all of our properties or assets to us, unless:
•
We are the surviving corporation or the successor person (if not us) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture;
•
Immediately after giving effect to the transaction, and treating any indebtedness that becomes the obligation of us or any of our subsidiaries as having been incurred at the effective date of such transaction, no default or event of default shall have occurred and be continuing; and
•
Certain other conditions are met.
Events of Default
For any series of debt securities, unless otherwise modified and in addition to any event of default described in the prospectus supplement applicable to that series, an event of default will include the following events:
•
Default in the payment when due of any interest on any debt security of that series, or any additional amounts owed with respect to such security, when becoming due and payable, and continuance of such default for a period of 30 days (unless we deposit the entire amount of the payment owed with the trustee or with a paying agent prior to the expiration of this 30-day period);
•
Default in the payment when due of principal of any debt security of that series;
•
Default in the deposit when due of any sinking fund payment when due and payable in respect of any debt security of that series;
•
Our breach of any covenant or warranty in the indenture (other than a covenant or warranty included in the indenture solely for the benefit of a series of debt securities other than that series or for which consequences of nonperformance or breach are addressed elsewhere in the indenture), which breach is not cured within 90 days after delivery of written notice thereof to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, as provided in the indenture; and
•
Certain events of bankruptcy, insolvency or reorganization involving us.
The applicable prospectus supplement will explain whether or not an event of default with respect to one series of debt securities will constitute a cross-default with respect to any other series of debt securities (except that certain events of bankruptcy, insolvency or reorganization will always constitute cross-defaults).
If an event of default with respect to any outstanding debt securities occurs and is continuing, then the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may, by written notice to us (and to the trustee if given by the holders), accelerate the payment of the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest, if any, on all debt securities of that series, though our subordinated debt securities may not grant holders this right to accelerate. Such acceleration is automatic (with no notice required) in the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization. Following acceleration, payments on our subordinated debt securities, if any, will be subject to the subordination provisions described below under “Subordinated Debt Securities.” At any time after acceleration with respect to debt securities of any series, but before the trustee has obtained a court judgment or decree for payment of the amounts due, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all events of default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. The prospectus supplement relating to any series of debt securities that are discount securities will contain particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
The indenture provides that the trustee will be under no obligation to perform any duty or exercise any rights or powers under the indenture at the request of any holder of outstanding debt securities unless the trustee is indemnified against any loss, liability or expense. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security may institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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That holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that series;
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The holder or holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance of such request; and
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The holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series have requested the trustee in writing to institute the proceeding (and have not subsequently given contrary instructions), and the trustee has failed to institute the proceeding within 60 days.
Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Under the indenture, we must furnish the trustee a statement as to compliance with the indenture within 120 days after the end of our fiscal year. The indenture provides that, other than with respect to payment defaults, the trustee may withhold notice to the holders of debt securities of any series of a default or event of default if it in good faith determines that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We may amend the indenture if the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments consent thereto. We may not make any amendment without the consent of the specific holder of an affected debt security then outstanding if that amendment will:
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Reduce the amount of such holders’ debt securities;
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Reduce the rate of or extend the time for payment of interest (including default interest) on any debt securities or any additional amounts required to be paid under the indenture or debt securities;
•
Reduce the principal or change the maturity of any debt securities or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
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Reduce the principal amount of security that provides for an amount less than the stated principal amount thereof to be due and payable upon acceleration of the maturity thereof;
•
Waive a default or event of default in the payment of the principal of or interest, if any, on any debt security (except a rescission of acceleration of the debt securities by the holders of at least a majority in principal amount of the outstanding debt securities and a waiver of the payment default that resulted from such acceleration);
•
Make the principal of or interest, if any, on any debt security or any additional amounts required to be paid under the indenture or debt securities with respect thereto payable in any currency other than that stated in the debt securities;
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Make any change in the terms under the indenture of the unconditional right of holders to receive principal and interest as provided in the indenture;
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Make any changes to the provisions related to the waiver of past defaults provided in the indenture;
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Modify the provisions relating to limitations on waivers without consent of the holders as provided in the indenture; or
•
Waive a redemption payment with respect to any debt security.
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of all holders waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of all holders waive any past default under the indenture with respect to that series and its consequences, except a payment default or a default of a covenant or provision which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. We may deposit with the trustee, in trust, cash or cash equivalents in an amount that, through the payment of interest and principal in accordance with their terms, is sufficient in the opinion of our independent public accountants to make all payments in cash of principal or interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the due dates for such payments in accordance with the terms of the indenture and those debt securities. If we make such a deposit, unless otherwise provided under the applicable series of debt securities, we will be discharged from any and all obligations in respect of the debt securities of such series (except for certain limited rights, including the registration of transfer and exchange of notes, replacement of lost, stolen or mutilated notes and the right to receive payments of the principal of (and premium, if any) and interest on such notes when such payments are due). However, this discharge may occur only if, among other things, we have delivered to the trustee a legal opinion stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and, based thereon confirming that, the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. Under the indenture (and unless otherwise provided by the terms of the applicable series of debt securities), upon making the deposit and delivering the legal opinion described in “Legal Defeasance” above, we will not need to comply with the covenants described under “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants that may be set forth in the applicable prospectus supplement, and any such noncompliance will not constitute a default or an event of default with respect to the debt securities of that series, or covenant defeasance.
Covenant Defeasance and Events of Default. If we exercise our option to effect covenant defeasance with respect to any series of debt securities and the debt securities of that series are declared due and payable because of the occurrence of any event of default, the amounts on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the event of default. We will remain liable for those payments.
The Trustee
The indentures limit the right of the trustee, should it become a creditor of us, to obtain payment of claims or secure its claims. The trustee is permitted to engage in certain other transactions. However, if the trustee acquires any conflicting interest, and there is a default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict or resign.
Subordinated Debt Securities
The indenture will govern the extent to which payment on any subordinated debt securities will be subordinated to the prior payment in full of all of our senior indebtedness. The subordinated debt securities also are effectively subordinated to all debt and other liabilities, including trade payables and lease obligations, if any, of our subsidiaries.
Upon any distribution of our assets upon any liquidation, dissolution, winding up or reorganization, the payment of principal and interest on subordinated debt securities will be subordinated to the prior payment in full of all senior indebtedness in cash or other payment satisfactory to the holders of such senior indebtedness. If subordinated debt securities are accelerated because of an event of default, the holders of any senior indebtedness would be entitled to payment in full in cash or other payment satisfactory to such holders of all senior indebtedness obligations before the holders of the subordinated debt securities are
entitled to receive any payment or distribution. The indenture requires us or the trustee to promptly notify holders of designated senior indebtedness of any acceleration of payment of the subordinated debt securities.
We may not make any payment on the subordinated debt securities, including upon redemption (whether at the holder’s or our option) if:
•
A default in the payment of the principal, premium, if any, interest, rent or other obligations in respect of designated senior indebtedness occurs and is continuing beyond any applicable grace period (called a “payment default”); or
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A default (other than a payment default) that permits holders of designated senior indebtedness to accelerate its maturity occurs and is continuing, and the trustee receives a notice of such default (called a “payment blockage notice”) from us or any other person permitted to give such notice under the indenture (called a “non-payment default”).
We may resume payments and distributions on the subordinated debt securities, in the case of a payment default, upon the date on which such default is cured or waived or ceases to exist; and, in the case of a non-payment default, the earlier of the date on which such nonpayment default is cured or waived and 179 days after the date on which the payment blockage notice is received, if the maturity of the designated senior indebtedness has not been accelerated.
No new payment blockage period may be commenced pursuant to a payment blockage notice unless 365 days have elapsed since the initial effectiveness of the immediately prior payment blockage notice and all scheduled payments, including any liquidated damages, on the debt securities that have come due have been paid in full in cash. Generally, a non-payment default existing or continuing on the date of delivery of any payment blockage notice cannot be the basis for any later payment blockage notice.
If the trustee or any holder of the notes receives any payment or distribution of our assets in contravention of the foregoing subordination provisions, then such payment or distribution will be held in trust for the benefit of holders of senior indebtedness or their representatives to the extent necessary to make payment in full in cash or payment satisfactory to the holders of senior indebtedness of all unpaid senior indebtedness.
In the event of our bankruptcy, dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders of the subordinated debt securities may receive less, ratably, than our other creditors (including our trade creditors). This subordination will not prevent the occurrence of any event of default under the indenture.
The indenture does not prohibit us from incurring debt, including senior indebtedness. We may from time to time incur additional debt, including senior indebtedness.
We are obligated to pay reasonable compensation to the trustee and to indemnify it against certain losses, liabilities or expenses it incurs in connection with its duties relating to the subordinated debt securities. The trustee’s claims for these payments will generally be senior to those of noteholders in respect of all funds collected or held by the trustee.
Certain Definitions
“indebtedness” means:
(1)
All indebtedness, obligations and other liabilities for borrowed money, including overdrafts, currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, or evidenced by bonds, debentures, notes or similar instruments, other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business;
(2)
All reimbursement obligations and other liabilities with respect to letters of credit, bank guarantees or bankers’ acceptances;
(3)
All obligations and liabilities under leases required by generally accepted accounting principles to be accounted for as capitalized lease obligations on our balance sheet;
(4)
All obligations and other liabilities under any real property lease or related document which contractually obligates us to purchase or cause a third party to purchase the leased property and thereby guarantee a minimum residual value of the leased property to the lessor;
(5)
All obligations under interest rate or other swaps, caps or collar agreements or other similar instruments or agreements or foreign currency hedge, exchange, purchase or similar instrument or agreement;
(6)
All direct or indirect guaranties or similar agreements in respect of indebtedness, obligations or liabilities of others of the type described in (1) through (5) above;
(7)
Any indebtedness or other obligations described in (1) through (6) above secured by any mortgage, pledge, lien or other encumbrance existing on property which we own or hold; and
(8)
Any and all refinancings, replacements, deferrals, renewals, extensions and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kind described in clauses (1) through (7) above.
“senior indebtedness” means the principal, premium, if any, interest, including any interest accruing after bankruptcy, and rent or termination payment on or other amounts due on our current or future indebtedness, whether created, incurred, assumed, guaranteed or in effect guaranteed by us, including any deferrals, renewals, extensions, refundings, amendments, modifications or supplements to the above. Senior indebtedness does not include:
(1)
Indebtedness that expressly provides that it shall not be senior in right of payment to subordinated debt securities or expressly provides that it is on the same basis or junior to subordinated debt securities; and
(2)
Our indebtedness to any of our majority-owned subsidiaries.
Governing Law
Unless otherwise set forth in the prospectus supplement applicable to the particular series of debt securities, the indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF DEPOSITARY SHARES
We may elect to offer fractional interests in shares of our preferred stock, in which case we will issue receipts for depositary shares and each of these depositary shares will represent a fraction of a share of the applicable series of our preferred stock, as set forth in the applicable prospectus supplement. The following summary of the terms of the depositary shares does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the terms of the depositary shares and our preferred stock, as well as the form of the depositary agreement, our Articles of Incorporation and the articles of amendment relating to the applicable series of our preferred stock that will be filed with the SEC. Therefore, you should carefully consider the actual provisions of these documents.
General
Each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of our preferred stock underlying that depositary share, to all rights and preferences of our preferred stock underlying that depositary share. These rights may include dividend, voting, redemption and liquidation rights.
The shares of our preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary, under a depositary agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary shares. The name and address of the principal executive office of the depositary will be included in the prospectus supplement relating to the issue.
The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the depositary agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
Dividends and Other Distributions
The depositary will distribute cash dividends or other cash distributions, if any, received in respect of the series of our preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant record date. The relevant record date for depositary shares will be the same date as the record date for our preferred stock.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary, with our approval, may adopt another method for the distribution, including selling the property and distributing the net proceeds to the holders.
Liquidation Preference
If a series of our preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of our preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If a series of our preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of our preferred stock held by the depositary. Whenever we redeem any of our preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing our preferred stock so redeemed. The depositary will mail the notice of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and no fewer than 20 nor more than 60 days, unless otherwise provided in the applicable prospectus supplement, prior to the date fixed for redemption of our preferred stock.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption.
Voting
Upon receipt of notice of any meeting at which the holders of our preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts underlying our preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of our preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same date as the record date for our preferred stock. The depositary will try, as far as practicable, to vote our preferred stock underlying the depositary shares in accordance with these instructions. We will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to vote our preferred stock in accordance with these instructions. The depositary will not vote our preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts.
Withdrawal of Preferred Stock
Owners of depositary shares will be entitled to receive upon surrender of depositary receipts at the principal office of the depositary and payment of any unpaid amount due to the depositary, the number of whole shares of our preferred stock underlying their depositary shares.
Partial shares of our preferred stock will not be issued. Holders of our preferred stock will not be entitled to deposit the shares under the depositary agreement or to receive depositary receipts evidencing depositary shares for our preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the depositary and us. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been approved by the holders of at least a majority of the outstanding depositary shares. The depositary agreement may be terminated by the depositary or us only if:
•
All outstanding depositary shares have been redeemed; or
•
There has been a final distribution of our preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangement. We will also pay charges of the depositary in connection with:
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The initial deposit of our preferred stock;
•
The initial issuance of the depositary shares;
•
Any redemption of our preferred stock; and
•
All withdrawals of our preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified charges as provided in the depositary agreement for their accounts. If these charges have not been paid, the depositary may:
•
Refuse to transfer depositary shares;
•
Withhold dividends and distributions; and
•
Sell the depositary shares evidenced by the depositary receipt.
Miscellaneous
The depositary will forward to the holders of depositary receipts all reports and communications we deliver to the depositary that we are required to furnish to the holders of our preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of our preferred stock.
Neither we nor the depositary will be liable if either we or the depositary are prevented or delayed by law or any circumstance beyond the control of either the depositary or us in performing our respective obligations under the depositary agreement. Our obligations and the depositary’s obligations will be limited to the performance in good faith of our or the depositary’s respective duties under the depositary agreement. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or our preferred stock unless satisfactory indemnity is furnished. The depositary and we may rely on:
•
Written advice of counsel or accountants;
•
Information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information; and
•
Documents believed to be genuine and to have been signed or presented by the proper party or parties.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering a notice to us. We may remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or removal. The successor depositary must be a bank and trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF WARRANTS
General
We may issue warrants in one or more series to purchase common stock, preferred stock, or any combination of these securities. Warrants may be issued independently or together with any underlying securities and may be attached to or separate from the underlying securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any obligation or relationship of agency for or on behalf of holders or beneficial owners of warrants. The following sets forth some of the general terms and provisions of the warrants. Further terms of the warrants and the applicable warrant agreement will be stated in the applicable prospectus supplement. The following description and any description of the warrants in a prospectus supplement are not complete and are subject to and qualified in its entirety by reference to the terms and provisions of the warrant agreement, which we will file with the SEC in connection with an issuance of any warrants.
The applicable prospectus supplement will describe the terms of any warrants, including the following, as may be applicable:
•
The title of the warrants;
•
The total number of warrants to be issued;
•
The consideration for which we will issue the warrants, including the applicable currency or currencies;
•
Anti-dilution provisions to adjust the number of shares of our common stock or other securities to be delivered upon exercise of the warrants;
•
The designation and terms of the underlying securities purchasable upon exercise of the warrants;
•
The price at which and the currency or currencies in which investors may purchase the underlying securities purchasable upon exercise of the warrants;
•
The dates on which the right to exercise the warrants will commence and expire;
•
The procedures and conditions relating to the exercise of the warrants;
•
Whether the warrants will be in registered or bearer form;
•
Information with respect to book-entry registration and transfer procedures, if any;
•
The minimum or maximum amount of warrants which may be exercised at any one time;
•
The designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security;
•
The date on and after which the warrants and securities issued with the warrants will be separately transferable;
•
A discussion of material U.S. federal income tax considerations;
•
The identity of the warrant agent; and
•
Any other terms of the warrants, including terms, procedures and limitations relating to the exchange, transfer and exercise of the warrants.
Warrant certificates may be exchanged for new warrant certificates of different denominations, and warrants may be exercised at the warrant agent’s corporate trust office or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their warrants, holders of warrants exercisable for shares of our common stock or preferred stock will not have any rights of holders of our common stock or preferred stock purchasable upon such exercise, including any rights to vote such shares or to receive any distributions or dividends thereon.
Exercise of Warrants
A warrant will entitle the holder to purchase for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable prospectus supplement. Warrants may be exercised at any time prior to the close of business on the expiration date and in accordance with the procedures set forth in the applicable prospectus supplement. Upon and after the close of business on the expiration date, unexercised warrants will be void and have no further force, effect or value.
Enforceability of Rights
The holders of warrants, without the consent of the warrant agent, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding against us to enforce their rights to exercise and receive the securities purchasable upon exercise of their warrants.
DESCRIPTION OF PURCHASE CONTRACTS AND PURCHASE UNITS
We may issue purchase contracts for the purchase or sale of our common stock, preferred stock or debt securities issued by us or by third parties as specified in the applicable prospectus supplement. Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase on specified dates, such securities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the securities otherwise deliverable, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract. The price per security and the number of securities may be fixed at the time the purchase contracts are entered into or may be determined by reference to a specific formula set forth in the applicable purchase contracts.
The purchase contracts may be issued separately or as part of units consisting of a purchase contract and debt securities or debt obligations of third parties, including U.S. treasury securities, or any other securities described in the applicable prospectus supplement or any combination of the foregoing, securing the holders’ obligations to purchase the securities under the purchase contracts, which we refer to herein as “purchase units.” The purchase contracts may require holders to secure their obligations under the purchase contracts in a specified manner. The purchase contracts also may require us to make periodic payments to the holders of the purchase contracts or the purchase units, as the case may be, or vice versa, and those payments may be unsecured or pre-funded on some basis.
The prospectus supplement relating to any offering of purchase contracts or purchase units will contain the specific terms of the purchase contracts or purchase units. These terms may include the following:
•
Whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;
•
Whether the purchase contracts are to be prepaid or not;
•
Whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract;
•
Any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts or purchase units;
•
A discussion of the material U.S. federal income tax considerations applicable to the purchase contracts or purchase units;
•
Whether the purchase contracts or purchase units will be issued in fully registered or global form; and
•
Any other terms of the purchase contracts or purchase units and any securities subject to such purchase contracts.
The description in the applicable prospectus supplement of any purchase contracts and purchase units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable purchase contract or unit agreement, which will be filed with the SEC in connection with any offering of such securities.
DESCRIPTION OF UNITS
We may issue units comprised of any combination of two or more of the other securities described in this prospectus and as specified in the applicable prospectus supplement. Each unit will be issued so that the holder of the unit is also the holder, with rights and obligations of a holder, of each security included in the unit. The units may be issued under unit agreements to be entered into between us and a unit agent.
The applicable prospectus supplement will specify the terms of the units, including:
•
The designation and terms of the units and of any of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
•
A description of the terms of any unit agreement governing the units;
•
A description of the provisions for the payment, settlement, transfer or exchange of the units;
•
A discussion of material U.S. federal income tax considerations, if applicable; and
•
Whether the units if issued as a separate security will be issued in fully registered or global form.
The applicable prospectus supplement will describe the terms of any units. The description in the applicable prospectus supplement of any units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement, which will be filed with the SEC in connection with any offering of units.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters, dealers or agents or directly to one or more purchasers. The securities may be distributed from time to time in one or more transactions at:
•
A fixed price or prices, which may be changed;
•
Market prices prevailing at the time of sale;
•
Prices related to the prevailing market price; or
•
Negotiated prices.
For each type and series of securities offered, the applicable prospectus supplement will set forth the terms of the offering, including:
•
The initial public offering price;
•
The names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them, if any;
•
Any delayed delivery arrangements;
•
The use of proceeds from the sale of the securities;
•
Any underwriting discounts, concessions, commissions, agency fees or other compensation payable to underwriters, dealers or agents;
•
Any discounts or concessions allowed or re-allowed or repaid to dealers;
•
Estimated offering expenses; and
•
The securities exchanges on which the securities will be listed, if any.
We may grant underwriters options to purchase additional securities at the public offering price, with additional underwriting commissions or discounts, as applicable, set forth in the prospectus supplement. The terms of any such option will be set forth in the prospectus supplement for those securities. Underwriters or agents may make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market” offering as defined in Rule 415 under the Securities Act, which includes sales made directly on the Nasdaq Global Select Market, the existing trading market for our common stock, or sales made to or through a market maker other than on an exchange.
We may issue to our existing security holders, through a dividend or similar distribution, rights to purchase shares of our common stock or preferred stock, which may or may not be transferable. In any distribution of rights to our existing security holders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to facilitate the distribution of the unsubscribed securities. The applicable prospectus supplement will describe the specific terms of any offering of our common stock or preferred stock through the issuance of rights including, if applicable, the material terms of any standby underwriting agreement or purchase agreement.
Sales Through Underwriters, Dealers or Agents; Direct Sales
If we use underwriters in any sale of securities offered under this prospectus, the underwriters will buy the securities for their own account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters may then resell the securities in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale or thereafter. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions and the underwriters will be obligated to purchase all the securities offered if they purchase any securities. The initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. In connection with an offering, underwriters and their affiliates may engage in transactions to stabilize, maintain or otherwise affect the market price of the securities in accordance with applicable law.
If we use dealers in any sale of securities offered under this prospectus, the securities will be sold to such dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale.
If agents are used in any sale of securities offered under this prospectus, they will use their reasonable best efforts to solicit purchases for the period of their appointment.
If securities offered under this prospectus are sold directly, no underwriters, dealers or agents would be involved. We are not making an offer of securities in any state that does not permit such an offer. If we sell securities through dealers or agents, or directly, the terms of any such sales will be described in the applicable prospectus supplement.
Delayed Delivery Contracts
We may authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities offered under this prospectus from us on a future date at a specific price. This type of contract may be made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts.
Market Making, Stabilization and Other Transactions
Each issue of a new series of preferred stock, warrants or rights will be a new issue of securities with no established trading market, except as indicated in the applicable prospectus supplement. Unless indicated in the applicable prospectus supplement, we do not expect to list the offered securities on a securities exchange, except for our common stock, which is listed on the Nasdaq Global Select Market. We can provide no assurance as to whether the securities will have a liquid trading market.
In order to facilitate the offering of any of the securities offered under this prospectus, the underwriters with respect to any such offering may, as described in the prospectus supplement, engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on these securities. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose of preventing or retarding a decline in the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. Any of these activities may have the effect of raising or maintaining the market price of our securities or preventing or retarding a decline in the market price of our securities. As a result, the market price of the securities may be higher than it otherwise would be in the absence of these transactions. The underwriters are not required to engage in these activities, and may end any of these activities at any time, all as described in the prospectus supplement.
Any person participating in the distribution of securities will be subject to applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including Regulation M, which may limit the timing of transactions involving the securities offered under this prospectus. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of such securities to engage in market-making activities with respect to the particular securities being distributed. All of the above may affect the marketability of the securities offered under this prospectus and the ability of any person or entity to engage in market-making activities with respect to such securities.
Under the securities law of various states, the securities offered under this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition, in various states the securities offered under this prospectus may not be offered and sold unless such securities have been registered or qualified for sale in the state or an exemption from such registration or qualification is available and is complied with.
Derivative Transactions and Hedging
We, the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings of the securities.
General Information
We expect that any agreements we may have with underwriters, dealers and agents will include provisions indemnifying them against certain civil liabilities, including certain liabilities under the Securities Act, or providing for contribution with respect to payments that they may be required to make. An underwriter, dealer or agent, or any of their affiliates, may be customers of, or otherwise engage in transactions with or perform services for us in the ordinary course of business.
The specific terms of any lock-up provisions with respect to any given offering will be described in the applicable prospectus supplement.
In compliance with guidelines of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and unless otherwise disclosed in the applicable prospectus supplement, we do not intend for the maximum consideration or discount to be received by any FINRA member or independent broker dealer to exceed 8.0% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities will be passed upon for us by Smith, Gambrell & Russell, LLP, and for any underwriters, dealers or agents by counsel as may be specified in the applicable prospectus supplement.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Ameris Bancorp as of and for the years ended December 31, 2022 and 2021, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2022, have been incorporated by reference in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference, and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Ameris Bancorp for the year ended December 31, 2020, have been incorporated by reference in reliance upon the report of Crowe LLP, independent registered public accounting firm, incorporated by reference, and upon the authority of said firm as experts in accounting and auditing.
PROSPECTUS
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
DEPOSITARY SHARES
WARRANTS
PURCHASE CONTRACTS
PURCHASE UNITS
UNITS
August 8, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses payable by the registrant in connection with the registration of the securities being registered under this registration statement. All amounts shown are estimates except the SEC registration fee:
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SEC registration fee
|
|
|
|
|
(1)
|
|
|
|
Legal fees and expenses
|
|
|
|
|
(2)
|
|
|
|
Printing expenses
|
|
|
|
|
(2)
|
|
|
|
Accounting fees and expenses
|
|
|
|
|
(2)
|
|
|
|
Trustee and depositary fees and expenses
|
|
|
|
|
(2)
|
|
|
|
Warrant agent fees and expenses
|
|
|
|
|
(2)
|
|
|
|
Blue sky fees and expenses
|
|
|
|
|
(2)
|
|
|
|
Rating agency fees
|
|
|
|
|
(2)
|
|
|
|
Listing fees
|
|
|
|
|
(2)
|
|
|
|
Miscellaneous
|
|
|
|
|
(2)
|
|
|
|
Total
|
|
|
|
|
(2)
|
|
|
(1)
In accordance with Rule 456(b) and Rule 457(r) under the Securities Act, the registrant is deferring payment of the registration fee associated with this registration statement.
(2)
Because an indeterminate amount of securities is covered by this registration statement, the expenses incurred in connection with the issuance and distribution of such securities are not currently determinable. The estimate of such expenses incurred in connection with securities to be offered and sold pursuant to this registration statement will be included in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 14-2-851 of the GBCC provides that a corporation may indemnify an individual who is party to a proceeding because he or she is or was a director against liability incurred in the proceeding if: (1) such individual conducted himself or herself in good faith; and (2) such individual reasonably believed (A) in the case of conduct in his or her official capacity, that such conduct was in the best interests of the corporation, (B) in all other cases, that such conduct was at least not opposed to the best interests of the corporation, and (C) in the case of any criminal proceeding, that the individual had no reasonable cause to believe that such conduct was unlawful. Subsection (b) of Section 14-2-851 of the GBCC provides that a director’s conduct with respect to an employee benefit plan for a purpose he or she believed in good faith to be in the interests of the participants in and beneficiaries of the plan satisfies the requirement described in subparagraph (1)(2)(B) of Section 14-2-851 of the GBCC. Subsection (c) of Section 14-2-851 of the GBCC provides that the termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in Section 14-2-851 of the GBCC. Subsection (d) of Section 14-2-851 of the GBCC provides that a corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct, or in connection with any proceeding with respect to conduct for which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854 of the GBCC, a court may order a corporation to indemnify a director if such court determines, in view of all the relevant circumstances, that it is fair and reasonable to indemnify or advance expenses to the director, even if the director has not met the relevant standard of conduct set forth in subsections (a) and (b) of Section 14-2-851 of the GBCC, failed to comply with Section 14-2-853 of the GBCC, or was adjudged liable in a proceeding referred to in
paragraph (1) or (2) of subsection (d) of Section 14-2-851 of the GBCC but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding.
Section 14-2-852 of the GBCC provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.
Section 14-2-857 of the GBCC provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation to the same extent as a director. If the officer is not a director (or if the officer is a director but the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer), the corporation may also indemnify and advance expenses to such officer to such further extent as may be provided by the articles of incorporation or the bylaws of the corporation, by a resolution of the board of directors of the corporation, or by contract, except for liability arising out of conduct that constitutes: (1) the appropriation, in violation of their duties, of any business opportunity of the corporation; (2) acts or omissions which involve intentional misconduct or a knowing violation of law; (3) the types of liability set forth in Section 14-2-832 of the GBCC; or (4) receipt of an improper personal benefit. An officer of a corporation who is not a director is entitled to mandatory indemnification under Section 14-2-852 of the GBCC and may apply to a court under Section 14-2-854 of the GBCC for indemnification or advances for expenses, in each case to the same extent to which a director may be entitled to indemnification or advances for expenses under those provisions. Finally, a corporation may also indemnify and advance expenses to an employee or agent who is not a director to the extent that, consistent with public policy, may be provided by its articles of incorporation or bylaws, by general or specific action by its board of directors or by contract.
Article VII of our Articles of Incorporation provides that, except as may be limited by the GBCC or any successor law or laws, no director shall be personally liable to Ameris Bancorp or any of its shareholders for monetary damages for breach of his or her duty of care or other duty as a director.
Article VII of our Bylaws provides that every person (and the heirs and legal representatives of such person) who is or was a director or officer of Ameris Bancorp or any other corporation of which he or she served as such at the request of Ameris Bancorp and of which Ameris Bancorp directly or indirectly is a shareholder or creditor, or in which or in the stocks, bonds, securities or other obligations of which Ameris Bancorp is in any way interested, shall, to the maximum extent permitted by the GBCC, be indemnified for any liability and expense that may be incurred by such person in connection with or resulting from any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (whether formal or informal and whether brought by or in the right of Ameris Bancorp or otherwise), or in connection with any appeal relating thereto, in which he or she may become involved, as a party or prospective party or otherwise, by reason of any action taken or not taken in his or her capacity as a director or officer or as a member of any committee appointed by the board of directors of Ameris Bancorp to act for, in the interest of, or on behalf of Ameris Bancorp, whether or not he or she continues to be a director or officer at the time such liability or expense is incurred; provided such person acted in good faith and (1) reasonably believed, in the case of conduct in the person’s official capacity, that the conduct was in Ameris Bancorp’s best interests; (2) reasonably believed, in all other cases, that the conduct was at least not opposed to Ameris Bancorp’s best interests; and (3) in the case of a criminal action or proceeding, did not have reasonable cause to believe that his or her conduct was unlawful. The termination of any claim, action, suit or proceeding, by judgment, order, compromise, settlement (with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, does not create a presumption that a director or officer did not meet the standards of conduct set forth in our Bylaws. Expenses incurred with respect to any claim, action, suit or proceeding of the character described in Article VII of our Bylaws shall be advanced by Ameris Bancorp prior to the final disposition thereof upon receipt of a written affirmation by the recipient of his or her good faith belief that he or she has met the applicable standard of conduct and a written undertaking and agreement of the recipient to repay such amount if it is ultimately determined that he or she is not entitled to indemnification under our Bylaws.
Notwithstanding the foregoing, Article VII of our Bylaws provides that no officer or director who was or is a party to any action or suit by or in the right of Ameris Bancorp to procure a judgment in its favor by reason of the fact that he or she is or was an officer or director of Ameris Bancorp shall be indemnified in respect of any claim, issue or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his or her duty to Ameris Bancorp, unless and except to the extent that the court in which such action or suit was brought determines that, despite the adjudication of liability and in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as such court deems proper.
Article VII of our Bylaws further provides that indemnification of, and advancement of expenses to, a director or officer under Article VII has been pre-authorized by Ameris Bancorp as permitted by Section 14-2-859(a) of the GBCC, and that pursuant to the authority exercised under Section 14-2-856 of the GBCC, no determination needs to be made for a specified claim, action, suit or proceeding that such indemnification of or advances of expenses to the director or officer is permissible in the circumstances because he or she has met a particular standard of conduct.
The rights of indemnification provided in Article VII of our Bylaws are in addition to: (1) any rights to which any director or officer may otherwise be entitled under any Bylaw, agreement, vote of shareholders or otherwise; and (2) the power of Ameris Bancorp to purchase and maintain insurance on behalf of any director or officer or other person against any liability asserted against him or her and incurred by him or her in such capacity, or arising out of his or her status as such, regardless of whether Ameris Bancorp would have the power to indemnify against such liability under Article VII of our Bylaws or otherwise.
Our Bylaws further provide that any amendment to Article VII thereof that limits or otherwise adversely affects the right of indemnification, advancement of expenses or other rights of any indemnified person thereunder shall, as to such indemnified person, apply only to claims, actions, suits or proceedings based on actions, events or omissions occurring after such amendment and after delivery of notice of such amendment to the indemnified person so affected. Any indemnified person shall, as to any proceeding based on actions, events or omissions occurring prior to the date of receipt of such notice, be entitled to the right of indemnification, advancement of expenses and other rights under Article VII of our Bylaws as in effect prior to such amendment.
Item 16. Exhibits.
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Exhibit No.
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Description
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1.1
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Form of Underwriting Agreement*
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3.1
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Restated Articles of Incorporation of Ameris Bancorp, dated February 23, 2023 (incorporated by reference to Exhibit 3.1 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 28, 2023)
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3.2
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Bylaws of Ameris Bancorp, as amended and restated through February 23, 2023 (incorporated by reference to Exhibit 3.2 to Ameris Bancorp’s Quarterly Report on Form 10-Q filed with the SEC on May 8, 2023)
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4.1
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See Exhibits 3.1 through 3.2 for provisions of the Restated Articles of Incorporation of Ameris Bancorp, dated February 23, 2023, and Bylaws of Ameris Bancorp, as amended and restated through February 23, 2023, which define the rights of securityholders
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4.2
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Indenture between Ameris Bancorp and Wilmington Trust Company, dated September 20, 2006 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Registration Statement on Form S-4 (Registration No. 333-138252) filed with the SEC on October 27, 2006)
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4.3
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Floating Rate Junior Subordinated Deferrable Interest Debenture, dated September 20, 2006 to Ameris Statutory Trust I (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Registration Statement on Form S-4 (Registration No. 333-138252) filed with the SEC on October 27, 2006)
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Exhibit No.
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Description
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4.4
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Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and U.S. Bank National Association, dated as of March 26, 2003 (incorporated by reference to Exhibit 4.3 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.5
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First Supplemental Indenture, dated as of December 23, 2013, by and among Ameris Bancorp, The Prosperity Banking Company and U.S. Bank National Association (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.6
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2033 (included as Exhibit A to the Indenture filed as Exhibit 4.3 to Ameris Bancorp’s Annual Report on Form 10-K filed with the SEC on March 14, 2014)
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4.7
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Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Deutsche Bank Trust Company Americas, dated as of June 24, 2004 (incorporated by reference to Exhibit 4.6 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.8
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First Supplemental Indenture, dated as of December 23, 2013, by and among Ameris Bancorp, The Prosperity Banking Company and Deutsche Bank Trust Company Americas (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.9
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Form of Floating Rate Junior Subordinated Deferrable Interest Note Due 2034 (incorporated by reference to Exhibit 4.8 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.10
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Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Wilmington Trust Company, dated as of January 31, 2006 (incorporated by reference to Exhibit 4.9 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.11
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First Supplemental Indenture, dated as of December 23, 2013, by and among Ameris Bancorp, The Prosperity Banking Company and Wilmington Trust Company (pertaining to Indenture, dated as of January 31, 2006) (incorporated by reference to Exhibit 4.10 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.12
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (included as Exhibit A to the Indenture filed as Exhibit 4.9 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.13
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Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Wilmington Trust Company, dated as of September 20, 2007 (incorporated by reference to Exhibit 4.18 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.14
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First Supplemental Indenture, dated as of December 23, 2013, by and among Ameris Bancorp, The Prosperity Banking Company and Wilmington Trust Company (pertaining to Indenture dated as of September 20, 2007) (incorporated by reference to Exhibit 4.19 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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4.15
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Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2037 (included as Exhibit A to the Indenture filed as Exhibit 4.18 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 14, 2014)
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Exhibit No.
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Description
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4.16
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Indenture between Ameris Bancorp (as successor to Coastal Bankshares, Inc.) and Wells Fargo Bank, National Association ,dated as of August 27, 2003 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.17
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First Supplemental Indenture, dated as of June 30, 2014, by and among Ameris Bancorp and Wells Fargo Bank, National Association (pertaining to Indenture dated as of August 27, 2003) (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.18
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Form of Junior Subordinated Debt Security Due 2033 (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.19
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Indenture between Ameris Bancorp (as successor to Coastal Bankshares, Inc.) and U.S. Bank National Association, dated as of December 14, 2005 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.20
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First Supplemental Indenture, dated as of June 30, 2014, by and among Ameris Bancorp, Coastal Bankshares, Inc. and U.S. Bank National Association (pertaining to Indenture dated as of December 14, 2005) (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.21
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Form of Junior Subordinated Debt Security Due 2035 (included as Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2014)
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4.22
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Indenture between Ameris Bancorp (as successor to Merchants & Southern Banks of Florida, Incorporated) and Wilmington Trust Company, dated as of March 17, 2005 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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4.23
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First Supplemental Indenture, dated as of May 22, 2015, by and among Ameris Bancorp, Merchants & Southern Banks of Florida, Incorporated and Wilmington Trust Company (pertaining to Indenture dated as of March 17, 2005) (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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4.24
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2035 (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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4.25
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Indenture between Ameris Bancorp (as successor to Merchants & Southern Banks of Florida, Incorporated) and Wilmington Trust Company, dated as of March 30, 2006 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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4.26
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First Supplemental Indenture, dated as of May 22, 2015, by and among Ameris Bancorp, Merchants & Southern Banks of Florida, Incorporated and Wilmington Trust Company (pertaining to Indenture dated as of March 30, 2006) (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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4.27
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (included as Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on May 27, 2015)
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Exhibit No.
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Description
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4.28
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Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company, dated as of June 17, 2004 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.29
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First Supplemental Indenture, dated as of March 11, 2016, by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.30
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2034 (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.31
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Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company, dated as of September 15, 2005 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.32
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Second Supplemental Indenture, dated as of March 11, 2016, by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.33
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Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2035 (included as Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.34
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Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company, dated as of December 14, 2006 (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.35
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First Supplemental Indenture, dated as of March 11, 2016, by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.8 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.36
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Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (included as Exhibit A to the Indenture filed as Exhibit 4.7 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.37
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Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wells Fargo Bank, National Association, dated as of June 20, 2008 (incorporated by reference to Exhibit 4.10 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.38
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First Supplemental Indenture, dated as of March 11, 2016, by and between Ameris Bancorp and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 4.11 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.39
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Form of Junior Subordinated Debt Security Due 2038 (included as Exhibit A to the Indenture filed as Exhibit 4.10 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016)
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4.40
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Subordinated Debt Indenture, dated as of March 13, 2017, by and between Ameris Bancorp and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017)
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Exhibit No.
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Description
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4.41
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First Supplemental Indenture, dated as of March 13, 2017, by and between Ameris Bancorp and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017)
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4.42
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Form of 5.75% Fixed-to-Floating Rate Subordinated Note due 2027 (included as Exhibit A to the First Supplemental Indenture filed as Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017)
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4.43
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Indenture, dated as of November 10, 2005, by and between Ameris Bancorp (as successor to Hamilton State Bancshares, Inc.) and Wilmington Trust Company (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018)
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4.44
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Second Supplemental Indenture, dated as of June 29, 2018, by and among Ameris Bancorp, Hamilton State Bancshares, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018)
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4.45
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Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018)
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4.46
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Indenture between Ameris Bancorp (as successor to Fidelity Southern Corporation) and U.S. Bank National Association, dated as of June 26, 2003 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.47
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First Supplemental Indenture, among Ameris Bancorp, Fidelity Southern Corporation and U.S. Bank National Association, dated as of July 1, 2019 (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.48
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Form of Floating Rate Junior Subordinated Deferrable Interest Debentures due 2033 (incorporated by reference to Exhibit 4.3 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.49
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Indenture between Ameris Bancorp (as successor to Fidelity Southern Corporation) and Wilmington Trust Company, dated as of March 17, 2005 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.50
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First Supplemental Indenture, among Ameris Bancorp, Fidelity Southern Corporation and Wilmington Trust Company, dated as of July 1, 2019 (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.51
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Form of Floating Rate Junior Subordinated Deferrable Interest Debentures due 2035 (incorporated by reference to Exhibit 4.6 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.52
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Indenture between Ameris Bancorp (as successor to Fidelity Southern Corporation) and Wilmington Trust Company, dated as of August 20, 2007 (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.53
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First Supplemental Indenture, among Ameris Bancorp, Fidelity Southern Corporation and Wilmington Trust Company, dated as of July 1, 2019 (incorporated by reference to Exhibit 4.8 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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Exhibit No.
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Description
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4.54
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Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures due 2037 (incorporated by reference to Exhibit 4.9 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 1, 2019)
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4.55
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Second Supplemental Indenture, dated as of December 6, 2019, by and between Ameris Bancorp and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on December 6, 2019)
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4.56
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Form of 4.25% Fixed-to-Floating Subordinated Notes due 2029 (incorporated by reference to Exhibit 4.3 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on December 6, 2019)
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4.57
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Form of Global Note representing Fixed/Floating Rate Subordinated Notes due 2030 (incorporated by reference to Exhibit 4.56 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 9, 2020)
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4.58
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Third Supplemental Indenture, dated as of September 28, 2020, by and between Ameris Bancorp and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on September 28, 2020)
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4.59
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Form of 3.875% Fixed-to-Floating Subordinated Notes due 2030 (incorporated by reference to Exhibit 4.3 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on September 28, 2020)
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4.60
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4.61
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Form of Articles of Amendment Establishing a Series of Preferred Stock*
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4.62
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Form of Specimen of Preferred Stock Certificate*
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4.63
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4.64
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Form of Senior Debt Security*
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4.65
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Form of Subordinated Debt Security*
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4.66
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Form of Depositary Agreement (including form of Depositary Receipt)*
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4.67
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Form of Warrant Agreement (including form of Warrant Certificate)*
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4.68
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Form of Purchase Contract Agreement (including form of Purchase Contract and form of Purchase Unit)*
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4.69
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Form of Unit Agreement (including form of Unit Certificate) *
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5.1
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23.1
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23.2
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23.3
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24.1
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25.1
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25.2
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107
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*
To be filed by post-effective amendment to this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference.
Item 17. Undertakings.
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on August 8, 2023.
AMERIS BANCORP
By:
/s/ H. Palmer Proctor, Jr.
Name: H. Palmer Proctor, Jr.
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the persons whose signature appears below appoints and constitutes H. Palmer Proctor, Jr. and Nicole S. Stokes, and each of them, his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute any and all amendments (including post-effective amendments) to the within registration statement (as well as any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, together with all exhibits thereto and all other documents in connection therewith, with the U.S. Securities and Exchange Commission and such other agencies, offices and persons as may be required by applicable law, granting unto each said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, each acting alone may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ H. Palmer Proctor, Jr.
H. Palmer Proctor, Jr.
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Chief Executive Officer and Director
(Principal Executive Officer)
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August 8, 2023
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/s/ Nicole S. Stokes
Nicole S. Stokes
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Corporate EVP and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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August 8, 2023
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/s/ William I. Bowen, Jr.
William I. Bowen, Jr.
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Director
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August 8, 2023
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/s/ Rodney D. Bullard
Rodney D. Bullard
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Director
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August 8, 2023
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/s/ Wm. Millard Choate
Wm. Millard Choate
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Director
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August 8, 2023
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Signature
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Title
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Date
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/s/ R. Dale Ezzell
R. Dale Ezzell
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Director
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August 8, 2023
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/s/ Leo J. Hill
Leo J. Hill
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Director
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August 8, 2023
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/s/ Daniel B. Jeter
Daniel B. Jeter
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Director
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August 8, 2023
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/s/ Robert P. Lynch
Robert P. Lynch
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Director
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August 8, 2023
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/s/ Elizabeth A. McCague
Elizabeth A. McCague
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Director
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August 8, 2023
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/s/ James B. Miller, Jr.
James B. Miller, Jr.
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Director and Chairman of the Board
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August 8, 2023
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/s/ Gloria A. O’Neal
Gloria A. O’Neal
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Director
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August 8, 2023
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/s/ William H. Stern
William H. Stern
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Director
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August 8, 2023
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/s/ Jimmy D. Veal
Jimmy D. Veal
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Director
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August 8, 2023
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Exhibit 4.63
AMERIS BANCORP
SENIOR DEBT INDENTURE
DATED AS OF , 20
, AS TRUSTEE
This SENIOR DEBT INDENTURE, dated as of , 20 ,
is made by and between AMERIS BANCORP, a Georgia corporation (“Company”), and , a , not in its individual capacity but solely
as trustee (the “Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, duties, levies, imposts, assessments or other governmental charges imposed on Holders specified
herein or therein and which are owing to such Holders.
“Affiliate” of
any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control
with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms
“controlled by” and “under common control with”), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
“Agent” means
any Registrar, Paying Agent or Service Agent.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, a Sunday, a legal holiday or any other day on which banking institutions in the City of New York, New York,
or any Place of Payment, are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means
the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by its Chief Executive Officer, the President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which
office at the date hereof is located at 1100 North Market Street, Wilmington, DE 19890, Attention: Ameris Bancorp Administrator, or such
other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders
and the Company).
“Default” means
any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depository” means,
with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the Stated Maturity thereof pursuant to Section 6.2.
“Dollars” and
“$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“GAAP” means generally
accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in
effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indenture” means
this Senior Debt Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“interest” with
respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when
used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such
installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption, or otherwise.
“Officer” means
the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
“Officers’ Certificate”
means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer
or principal accounting officer.
“Opinion of Counsel”
means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company.
“person” means
any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Securities of or within any Series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as contemplated by Section 2.1.
“principal” or
“principal amount” of a Security means the principal amount of the Security plus, when appropriate, the premium, if any, on,
and any Additional Amounts in respect of, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject,
in each case, who has direct responsibility for the administration of this Indenture.
“SEC” means the
Securities and Exchange Commission.
“Securities” means
the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and
2.2 hereof.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of
any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person
or a combination thereof.
“TIA” means the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; 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 as so amended.
“Trustee” means
the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee
hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any
Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are (a) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and
which in the case of (a) and (b) are not callable or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by
such depository receipt.
Section 1.2 Other
Definitions.
Term | |
Defined
in
Section | |
“Bankruptcy Law” | |
| 6.1 | |
“Custodian” | |
| 6.1 | |
“Event of Default” | |
| 6.1 | |
“Legal Holiday” | |
| 10.7 | |
“mandatory sinking fund payment” | |
| 11.1 | |
“optional sinking fund payment” | |
| 11.1 | |
“Paying Agent” | |
| 2.4 | |
“Registrar” | |
| 2.4 | |
“Service Agent” | |
| 2.4 | |
“successor person | |
| 5.1 | |
Section 1.3 Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference
in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means
the SEC.
“default” means
Event of Default.
“indenture securities”
means the Securities.
“indenture security
holder” means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the
indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4 Rules Of
Construction. Unless the context otherwise requires:
| (a) | a term has the meaning assigned to it; |
| (b) | an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted
accounting principles; |
| (c) | references to “generally accepted accounting principles” and “GAAP” shall mean
generally accepted accounting principles, consistently applied, in effect as of the time when and for the period as to which such accounting
principles are to be applied; |
| (d) | “or” is not exclusive; |
| (e) | words in the singular include the plural, and in the plural include the singular; and |
| (f) | provisions apply to successive events and transactions. |
ARTICLE II.
THE SECURITIES
Section 2.1 Issuable
In Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined
in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time,
the Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date
or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided
that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2 Establishment
Of Terms Of Series Of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established
(as to the Series generally, in the case of Subsection 2.2(a) and either as to such Securities within the Series or as
to the Series generally, in the case of Subsections 2.2(b) through 2.2(q)) by or pursuant to a Board Resolution, and set forth
or determined in the manner provided in a Board Resolution, supplemental indenture or an Officers’ Certificate:
| (a) | the title of the Series (which shall distinguish the Securities of that particular Series from
the Securities of any other Series); |
| (b) | the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities
of the Series will be issued; |
| (c) | any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6); |
| (d) | the date or dates on which the principal of the Securities of the Series is payable; |
| (e) | the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine
such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the
Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest
payment date; |
| (f) | the Place of Payment where the principal of and interest, if any, on the Securities of the Series shall
be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means; |
| (g) | if applicable, the period or periods within which, the price or prices at which and the terms and conditions
upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company; |
| (h) | the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant
to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation; |
| (i) | the dates, if any, on which and the price or prices at which the Securities of the Series will be
repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations; |
| (j) | if other than denominations of $1,000 and any integral multiple in excess thereof, the denominations in
which the Securities of the Series shall be issuable; |
| (k) | the forms of the Securities of the Series in fully registered form (and whether the Securities will
be issuable as Global Securities); |
| (l) | if other than the entire principal amount thereof, the portion of the principal amount of the Securities
of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2; |
| (m) | the provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the
Series; |
| (n) | any addition to or change in the Events of Default which applies to any Securities of the Series and
any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 6.2; |
| (o) | any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of
the Series; |
| (p) | any other terms of the Securities of the Series (which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and |
| (q) | any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those appointed herein. |
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series,
unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution
and Authentication.
Two Officers shall sign the
Securities for the Company by manual, electronic or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. Such a signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not be taken lawfully; (b) if the Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or Vice Presidents shall determine that such action would expose the Trustee to personal liability
to Holders of any then outstanding Series of Securities; (c) the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, protections, duties or immunities under the Securities and this Indenture in a manner that is not reasonably
acceptable to the Trustee; or (d) if the Trustee determines in good faith that the terms of any Securities as set forth in a Board
Resolution of Officers’ Certificate would adversely affect it.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar
and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the Place of Payment specified with
respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment (the “Paying Agent”), where Securities of such Series may be surrendered for registration of
transfer or exchange (the “Registrar”) and where notices and demands to or upon the Company in respect of the Securities of
such Series and this Indenture may be served (the “Service Agent”). The Registrar shall keep a register with respect
to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the
name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company
shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided,
however, that the Trustee shall not be deemed an agent of the Company for service of legal process.
The Company may also from
time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind
such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any
Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent”
includes any additional service agent.
The Company hereby appoints
the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying
Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying
Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money.
If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit
of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names
and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of Securities.
Section 2.7 Transfer
and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer
or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make
the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such sending, or (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Notwithstanding anything contained
herein to the contrary, neither the Trustee nor Note Registrar shall be responsible for ascertaining whether any transfer complies with
the registration provisions of or exemptions from the Securities Act or applicable state securities laws.
Section 2.8 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or satisfactory indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9 Outstanding
Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance
with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due
and payable on such date of Maturity).
A Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any
request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities of a Series that the Trustee actually knows are so owned shall be so disregarded.
Section 2.11 Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon request shall authenticate definitive Securities of the same Series and Stated Maturity in exchange for temporary Securities.
Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation.
All Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any
such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever and may deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to
the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 2.12, except as expressly permitted by this Indenture. Cancelled Securities held by the Trustee shall be destroyed
by the Trustee in accordance with its customary procedures. The Company by Company Order may direct the Trustee to deliver a certificate
of such destruction to the Company.
Section 2.13 Defaulted
Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus,
to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on
a subsequent special record date. The Company shall fix the record date and payment date. At least 10 days before the record date, the
Company shall send to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date
and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global
Securities.
| (a) | Terms Of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’
Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depository for such Global Security or Securities. |
| (b) | Transfer And Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7
hereof and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 hereof for Securities registered
in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered as a clearing
agency under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’
Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal
amount equal to the principal amount of the Global Security with like tenor and terms. |
|
|
Except as provided in this Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository. |
| (c) | Legend. Any Global Security issued hereunder shall bear a legend in substantially the following
form: |
“This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository.
This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository.”
| (d) | Acts Of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants
to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give
or take under the Indenture. |
| (e) | Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder
thereof. |
| (f) | Consents, Declaration And Directions. Except as provided in Section 2.14(e), the Company,
the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. |
Section 2.15 CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1 Notice
To Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of
Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or
is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The
Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection
of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture
or an Officers’ Certificate, if less than all the Securities of any Series issued on the same day with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the redemption date by the Trustee,
from the Outstanding Securities of such Series issued on such date with the same terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate, and, in the case of global Securities, in accordance with the procedures of the
depositary, provided that such method complies with the rules of any national securities exchange or quotation system on which the
Securities are listed (so long as the Trustee knows of such listing), and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that Series or any integral multiple thereof) of the principal amount of
Securities of such Series of a denomination larger than the minimum authorized denomination for Securities of that Series; provided,
however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such Series.
The Trustee shall promptly
notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Notwithstanding the foregoing,
if any Security to be redeemed is a Global Security then any partial redemption of that Series of Securities will be made in accordance
with the Depository’s applicable procedures among all Holders of such Series of Securities.
Section 3.3 Notice
of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall send a notice of redemption
to each Holder whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
| (b) | the redemption price and accrued interest, if any, to the redemption date payable as provided; |
| (c) | the name and address of the Paying Agent; |
| (d) | that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect
the redemption price; |
| (e) | that interest on Securities of the Series called for redemption ceases to accrue on and after the
redemption date; |
| (f) | the CUSIP number, if any; |
| (g) | any conditions precedent that must be satisfied prior to the redemption; and |
| (h) | any other information as may be required by the terms of the particular Series or the Securities
of a Series being redeemed. |
At the Company’s request
in an Officers’ Certificate, given at least five Business Days prior to the date set of requested delivery of such notice, the Trustee
shall give the notice of redemption in the Company’s name and at its expense.
Section 3.4 Effect
of Notice of Redemption. Once notice of redemption is sent as provided in Section 3.3, Securities of a Series called for
redemption become due and payable on the redemption date and at the redemption price, subject to, with respect to any redemption that
is conditioned upon the satisfaction of any conditions precedent, (i) the delay of such redemption date until such time as any or
all of such conditions precedent have been satisfied or (ii) the revocation of such redemption if the Company determines that such
conditions precedent will not be satisfied. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price
plus accrued interest to the redemption date, provided that installments of interest whose Stated Maturity is on or prior to the redemption
date shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business on
the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit
of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security
of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1 Payment
of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that
it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2 SEC
Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
Section 4.3 Compliance
Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her
knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long
as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.4 Stay,
Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
Section 4.5 Corporate
Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right, license or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.
Section 4.6 Taxes.
The Company shall pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate
proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1 When
Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially
all of its properties and assets to, any person (a “successor person”), nor shall the Company permit any other person to consolidate
with or merge into it or convey, transfer or lease all or substantially all of its properties and assets to it, in either case unless:
| (a) | the Company is the surviving corporation or the successor person (if other than the Company) is a corporation
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations
on the Securities and under this Indenture; and |
| (b) | immediately after giving effect to the transaction, and treating any indebtedness that becomes the obligation
of the Company or any of its Subsidiaries as having been incurred at the effective date of such transaction, no Default or Event of Default
shall have occurred and be continuing. |
The Company shall deliver
to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor
Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or
with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has
been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1 Events
of Default. “Event of Default,” wherever used herein with respect to Securities of any Series, means any one of the following
events, unless in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall
not have the benefit of said Event of Default:
| (a) | default in the payment of any interest on any Security of that Series, or any Additional Amounts with
respect thereto, when becoming due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); |
| (b) | default in the payment of principal of any Security of that Series at its Maturity; |
| (c) | default in the deposit of any sinking fund payment, when and as due in respect of any Security of that
Series; |
| (d) | default in the performance or breach of any covenant or warranty of the Company in this Indenture (other
than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and
other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than
that Series), which default continues uncured 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 not less than 25.0% in aggregate principal amount of the
outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; |
| (e) | the Company pursuant to or within the meaning of any Bankruptcy Law: |
| (i) | commences a voluntary case, |
| (ii) | consents to the entry of an order for relief against it in an involuntary case, |
| (iii) | consents to the appointment of a Custodian of it or for all or substantially all of its property, |
| (iv) | makes a general assignment for the benefit of its creditors, or |
| (v) | generally is unable to pay its debts as the same become due; or |
| (f) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| (i) | is for relief against the Company in an involuntary case, |
| (ii) | appoints a Custodian of the Company or for all or substantially all of its property, or |
| (iii) | orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days;
or |
| (g) | any other Event of Default provided with respect to Securities of that Series, which is specified in a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2(n). |
The term “Bankruptcy Law” means title
11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration
of Maturity; Rescission and Annulment. Except to the extent provided otherwise in the establishing Board Resolution, supplemental
indenture or Officers’ Certificate for such Series, if an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)), then in every
such case the Trustee or the Holders of not less than 25.0% in aggregate principal amount of the outstanding Securities of that Series may
declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount
as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or portion thereof) of and accrued and
unpaid interest, if any, on all outstanding Securities shall automatically become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3 Collection
Of Indebtedness And Suits For Enforcement By Trustee. The Company covenants that if:
| (a) | default is made in the payment of any interest on any Security, or any Additional Amount with respect
thereto, when such interest or Additional Amount becomes due and payable and such default continues for a period of 30 days, |
| (b) | default is made in the payment of principal of any Security at the Maturity thereof, or |
| (c) | default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel. |
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee
May File Proofs Of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.5 Trustee
May Enforce Claims Without Possession Of Securities. All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 6.6 Application
of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all
amounts due the Trustee under this Indenture; and
Second: To the payment of
the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company.
Section 6.7 Limitation
On Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
| (a) | such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect
to the Securities of that Series; |
| (b) | the Holders of not less than 25.0% in aggregate principal amount of the outstanding Securities of that
Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder; |
| (c) | such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request; |
| (d) | the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and |
| (e) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period
by the Holders of a majority in principal amount of the outstanding Securities of that Series; |
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all such Holders.
Section 6.8 Unconditional
Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security
on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 6.10 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 6.11 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control
by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series, provided that:
| (a) | such direction shall not be in conflict with any rule of law or with this Indenture; |
| (b) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such
direction; and |
| (c) | subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability. |
Section 6.13 Waiver
Of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may
on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and
its consequences, except a Default (a) in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration) or (b) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.14 Undertaking
For Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case
of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1 Duties
of Trustee.
| (a) | If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of their own affairs. |
| (b) | Except during the continuance of an Event of Default: |
| (i) | The Trustee need perform only those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers. |
| (ii) | In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee
and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’
Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. |
| (c) | The Trustee may not be relieved from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that: |
| (i) | This paragraph does not limit the effect of paragraph (b) of this Section. |
| (ii) | The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
| (iii) | The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it
with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series. |
| (d) | Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph this
Section 7.1 and Section 7.2. |
| (e) | The Trustee may refuse to perform any duty or exercise any right or power at the request or direction
of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense. |
| (f) | The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required
by law. |
| (g) | No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or satisfactory indemnity against such risk is not assured to it. |
| (h) | The Trustee is not required to give any bond or surety with respect to the performance of its duties or
the exercise of its powers under this Indenture. The permissive right of the Trustee to take the actions permitted by this Indenture shall
not be construed as an obligation or duty to do so. |
| (i) | The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections and
immunities as are set forth in this Section and Section 7.2 with respect to the Trustee. |
Section 7.2 Rights
of Trustee.
| (a) | The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed
by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated
in the document. |
| (b) | Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate, Opinion
of Counsel, or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate and/or Opinion of Counsel. |
| (c) | The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any Depository. |
| (d) | The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or willful misconduct. |
| (e) | The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. |
| (f) | The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without
negligence and in good faith and in reliance thereon. |
| (g) | The Trustee may conclusively rely upon and shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, opinion, statement, instrument, opinion, report, notice, request, direction, consent,
order, judgement, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit. |
| (h) | The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of
a particular Series and this Indenture. |
| (i) | Delivery of reports, information and documents (including, without limitation, reports contemplated in
this Section) to the Trustee is for information purposes only, and the Trustee’s receipts thereof shall not constitute actual or
constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with covenants under the Indenture, Securities, and guarantees (if any), as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates. |
| (j) | The Trustee shall have no responsibility for monitoring the Company’s compliance with any of its
covenants under this Indenture. |
| (k) | The Trustee shall not be responsible or liable for punitive, special, indirect, incidental or consequential
loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of actions. |
| (l) | Any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture
or other Note Documents shall not be construed as a duty. |
| (m) | The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations
under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation,
any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; terrorism;
wars; and other civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions; loss or malfunction of utilities,
computer (hardware or software) or communication services or the unavailability of the Federal Reserve Bank wire or telex or other wire
or communication facility; accidents; labor disputes; and acts of civil or military authorities or governmental actions. |
| (n) | The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of any Series, relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series. |
Section 7.3 Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise
deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s
Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.
Section 7.5 Notice
Of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has actual knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding
the notice is in the interests of Securityholders of that Series.
Section 7.6 Reports
by Trustee to Holders. Within 60 days after each anniversary of this Indenture, following the date of the initial issuance of Securities
under this Indenture, the Trustee shall send to all Securityholders, as their names and addresses appear on the register kept by the Registrar
a brief report dated as of such anniversary date of this Indenture, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the
time of its sending to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.
Section 7.7 Compensation
and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee
shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such
expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss, liability, claim (including
any between the parties to this Indenture or any third party claim and including attorneys’ fees and including in connection with
enforcement of its rights to indemnity hereunder), suit or expense, including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture
as Trustee or Agent. The Trustee shall notify the Company promptly of any third party claim for which it may seek indemnity. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee to the extent of its or their negligence or willful misconduct.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the compensation
for the services are intended to constitute administrative expenses for purposes of priority under any Bankruptcy Law.
The provisions of this Section shall
survive the resignation or removal of the Trustee and the termination of this Indenture.
Section 7.8 Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company at least 30 days prior to the requested date of removal. The Company may remove the Trustee with
respect to Securities of one or more Series if:
| (a) | the Trustee fails to comply with Section 7.10; |
| (b) | the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law; |
| (c) | a Custodian or public officer takes charge of the Trustee or its property; or |
| (d) | the Trustee becomes incapable of acting. |
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at least a majority in principal amount
of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall
send a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee
with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor
Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another person, the successor person without any further act shall be the successor Trustee.
Section 7.10 Eligibility;
Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Referential
Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided
in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
| (i) | all Securities theretofore authenticated and delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or |
| (ii) | all such Securities not theretofore delivered to the Trustee for cancellation |
| (1) | have become due and payable, or |
| (2) | will become due and payable at their Stated Maturity within one year, or |
| (3) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; or |
| (4) | are deemed paid and discharged pursuant to Section 8.3, as applicable; and the Company, in the case
of (1), (2) and (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable
on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be; |
| (b) | the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (c) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied
with. |
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2 Application
of Trust Funds; Indemnification.
| (a) | Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1,
all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking
fund payments or analogous payments as contemplated by Sections 8.3 or 8.4. |
| (b) | The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against U.S. Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect
of such obligations other than any payable by or on behalf of Holders. |
| (c) | The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money were deposited
or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture. |
Section 8.3 Legal
Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2(p), to be
inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding
Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph (c) hereof, and the provisions
of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the
expense of the Company, shall, at Company Request, execute proper instruments acknowledging the same), except as to:
| (a) | the rights of Holders of Securities of such Series to receive, from the trust funds described in
subparagraph (c) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding
Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit
of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of such Series; |
| (b) | the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and |
| (c) | the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions
shall have been satisfied: |
| (i) | the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment
of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a regionally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments
in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments
are due; |
| (ii) | such deposit will not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound; |
| (iii) | no Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the 120th day after such date; |
| (iv) | the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since
the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred; |
| (v) | the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit
was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and |
| (vi) | the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that: (A) either
(i) as a result of the deposit made pursuant to subparagraph (c)(i) above registration is not required under the Investment
Company Act of 1940, as amended, by the Company with respect to the trust funds representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act have been effected and (B) the discharge does not cause the Trustee
to have a conflicting interest for purposes of the Trust Indenture Act; and |
| (vii) | the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied
with. |
Section 8.4 Covenant
Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2(p) to be inapplicable to Securities
of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit
to comply with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4,
4.6, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution
or an Officers’ Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event
specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
| (a) | With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S.
Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a regionally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest,
if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of
interest or principal and such sinking fund payments are due; |
| (b) | Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound; |
| (c) | No Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the 120th day after such date; |
| (d) | The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the
Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such deposit and covenant defeasance had not occurred; |
| (e) | The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that: (A) either
(i) as a result of the deposit made pursuant to subsection (a) above registration is not required under the Investment Company
Act of 1940, as amended, by the Company with respect to the trust funds representing such deposit or by the Trustee for such trust funds
or (ii) all necessary registrations under said Act have been effected and (B) the discharge does not cause the Trustee to have
a conflicting interest for purposes of the Trust Indenture Act; and |
| (f) | The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have
been complied with. |
Section 8.5 Repayment
to Company. Subject to applicable law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed for six months. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1 Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without
the consent of any Securityholder by indentures supplemental hereto:
| (a) | to cure any ambiguity, defect or inconsistency, provided that such actions will not adversely affect the
interests of the holders of the Notes in any material respect; |
| (b) | to comply with Article V; |
| (c) | to evidence the succession of another corporation to the Company, or successive successions, pursuant
to Article 11 hereof, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company
herein and in the Securities; |
| (d) | to add to the covenants of the Company such further covenants, restrictions, conditions or provisions
as its Board of Directors shall consider to be for the protection of the holders of Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein set forth, with such period of grace, if any,
and subject to such conditions as such supplemental indenture may provide; |
| (e) | to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the holders of Securities of any Series in any material respect; |
| (f) | to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and
to add to this Indenture such other provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter
enacted; |
| (g) | to add any additional Events of Default (and if such Events of Default are to be for the benefit of less
than all Series of Securities, stating that such are expressly being included solely for the benefit of such Series); |
| (h) | to modify, eliminate or add to any of the provisions of this Indenture, provided that any such change
or elimination (i) shall become effective only when there is no Security of any Series Outstanding and created prior to the
execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Security
Outstanding; |
| (i) | to provide for uncertificated Securities in addition to or in place of certificated Securities, provided
that such actions will not adversely affect the interests of the holders of the Notes in any material respect; |
| (j) | to make any change that does not adversely affect the rights of any Securityholder; |
| (k) | to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as
permitted by this Indenture; |
| (l) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or |
| (m) | to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture
under the TIA. |
Section 9.2 With
Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of
at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of
at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall send to the Holders of Securities affected thereby a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
Without the consent of each Securityholder affected, an amendment or waiver may not:
| (a) | reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; |
| (b) | reduce the rate of or extend the time for payment of interest (including default interest) on any Security
or any Additional Amount with respect thereto; |
| (c) | reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous obligation; |
| (d) | reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; |
| (e) | waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security
(except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of
the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); |
| (f) | make the principal of or interest, if any, on any Security or any Additional Amount with respect thereto
payable in any currency other than that stated in the Security; |
| (i) | make any change in Sections 6.8, 6.13, or 9.3 (this sentence); or |
| (ii) | waive a redemption payment with respect to any Security. |
Section 9.4 Compliance
With Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental
indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation
and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice
of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
Section 9.6 Notation
on or Exchange of Securities. The Company or the Trustee, at the direction of the Company may place an appropriate notation about
an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee
Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent
have been satisfied, the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental
indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The
Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects
it.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Trust
Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required
or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if
in writing and delivered in person or mailed by first-class mail:
if to the Company:
Ameris Bancorp
3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia 30305
Attention: Chief
Executive Officer
Telephone: (404)
639-6500
if to the Trustee:
Wilmington Trust, National Association
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Ameris Bancorp Administrator
Telephone: (302)
636-6398
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
Subject to the penultimate
paragraph of this Section 10.2, any notice or communication to a Securityholder shall be mailed by first-class mail to his address
shown on the register kept by the Registrar. Failure to send a notice or communication to a Securityholder of any Series or any defect
in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication
is sent in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice
or communication to Securityholders, it shall send a copy to the Trustee and each Agent at the same time. Notwithstanding any other provision
of the Indenture or any Security, where the Indenture or any Security provides for notice of any event or any other communication (including
any notice of redemption or repurchase) to a Securityholder of a Security (whether by mail or otherwise), such notice shall be sufficiently
given if given to Depository (or its designee) pursuant to the applicable procedures from Depository or its designee, including by electronic
mail in accordance with accepted practices at Depository.
The Trustee may, in its sole
discretion, agree to accept and act upon instructions or directions pursuant to this Indenture sent by e-mail, facsimile transmission
or other similar electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions
shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the
Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with
a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
Section 10.3 Communication
by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that
Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
| (a) | an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been complied with; and |
| (b) | an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have
been complied with. |
Section 10.5 Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for
in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and
shall include:
| (a) | a statement that the person making such certificate or opinion has read such covenant or condition; |
| (b) | a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; |
| (c) | a statement that, in the opinion of such person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (d) | a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied
with. |
Section 10.6 Rules by
Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of one or more Series.
Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal
Holidays. Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular
Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.8 No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9 Counterparts;
Electronic Signatures. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
The exchange of copies of this Indenture and of signature pages by facsimile or electronic format (e.g., “.pdf”
or “.tif”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may
be used in lieu of the original Indenture for all purposes. Unless otherwise provided herein or in any other Securities, the words “execute”,
“execution”, “signed”, and “signature” and words of similar import used in or related to any document
to be signed in connection with this Indenture, any other Securities or any of the transactions contemplated hereby (including amendments,
waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based
recordkeeping system, as applicable, to the fullest extent and as provided for in any Applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001-7006), the New York State Electronic Signatures and
Records Act of 1999 (N.Y. State Tech. §§ 301-309), and any other similar state laws based on the Uniform Electronic Transactions
Act, provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic
signatures in any form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by such Trustee
Section 10.10 Governing
Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
Section 10.11 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 10.13 Severability;
Entire Agreement. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Indenture and the exhibits
hereto set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior agreements
and understandings, oral or written.
Section 10.14 Table
of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 10.15 Waiver
of Trial by Jury. EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, OR THE TRANSACTION
CONTEMPLATED THEREBY.
Section 10.16 Consent
to Jurisdiction.
| (a) | The Company hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States sitting in the State and City of New York, County, and
Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Indenture
or the Notes, or for the recognition or enforcement of any judgment, and each of the parties hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and determined in such state court sitting in the State and City
of New York, County and Borough of Manhattan or, to the extent permitted by law, in such federal court sitting in the State and City of
New York, County and Borough of Manhattan. |
| (b) | The Company hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Indenture or the Notes in any New York State or federal court. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. |
Section 10.17 USA
Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all
financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record
information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the USA PATRIOT Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a
Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking
fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of
any Series as provided for by the terms of the Securities of such Series.
Section 11.2 Satisfaction
Of Sinking Fund Payments With Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such
Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking
fund redemption) and (b) apply as credit Securities of such Series to which such sinking fund payment is applicable and which
have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities
(except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional
redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the
date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee
at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2,
the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action
be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver
to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities
of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 11.3 Redemption
Of Securities For Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture
or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant
to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified
in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.4, 3.5 and 3.6.
[Signature page follows.]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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AMERIS BANCORP |
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By: |
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Name: |
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Title: |
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TRUSTEE, not in its individual capacity but solely as Trustee |
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By: |
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Name: |
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Title: |
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Exhibit 5.1
1105 W. Peachtree St. NE, Suite 1000
Atlanta, Georgia 30309-3608
Tel: 404 815-3500
www.sgrlaw.com |
|
August 8, 2023
Via FedEx
Ameris Bancorp
3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to
Ameris Bancorp, a Georgia corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the
“Registration Statement”) to be filed on or about the date hereof by the Company with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement
relates to the issuance and sale by the Company from time to time, pursuant to Rule 415 of the General Rules and Regulations
of the Commission promulgated under the Securities Act (the “Rules and Regulations”), of: (i) shares of common stock,
par value $1.00 per share, of the Company (“Common Stock”); (ii) shares of preferred stock of the Company (“Preferred
Stock”), which may be issued in one or more series; (iii) debt securities of the Company (the “Debt Securities”),
which may be either subordinated debt securities or senior debt securities and which may be issued in one or more series under: (a) with
respect to subordinated debt securities, the Subordinated Debt Indenture, dated as of March 13, 2017, between the Company and Wilmington
Trust, National Association (the “Subordinated Debt Indenture”); and (b) with respect to senior debt securities, an indenture
proposed to be entered into by the Company and a trustee to be named therein (the “Senior Debt Indenture” and, together with
the Subordinated Debt Indenture, the “Indentures”), which Indentures (or form thereof) are filed as exhibits to the Registration
Statement; (iv) depositary receipts (the “Receipts”) representing fractional shares of Preferred Stock, which are called
depositary shares (the “Depositary Shares”), and which may be issued pursuant to one or more depositary agreements (each,
a “Depositary Agreement”) proposed to be entered into between the Company and one or more banks or trust companies to be named
in the applicable Depositary Agreement (each, a “Bank Depositary”); (v) warrants to purchase shares of Common Stock,
shares of Preferred Stock or Debt Securities (“Warrants”), which may be issued pursuant to one or more warrant agreements
(each, a “Warrant Agreement”) proposed to be entered into by the Company and one or more warrant agents to be named therein;
(vi) purchase contracts (“Purchase Contracts”) obligating the holders thereof to purchase from the Company, and the Company
to sell to such holders, shares of Common Stock, shares of Preferred Stock or Debt Securities at a future date or dates, which may be
issued pursuant to one or more purchase contract agreements (each, a “Purchase Contract Agreement”) proposed to be entered
into by the Company and one or more purchase contract agents to be named therein; (vii) purchase units of the Company (“Purchase
Units”), each consisting of a Purchase Contract and Debt Securities, Preferred Stock or debt obligations of third parties, including
United States Treasury securities, or any combination of the foregoing, which may be issued pursuant to one or more agreements (each,
a “Purchase Unit Agreement”) proposed to be entered into by the Company and one or more purchase unit agents to be named therein;
(viii) units of the Company (“Units”) comprised of any combination of Common Stock, Preferred Stock, Debt Securities,
Depositary Shares, Warrants, Purchase Contracts or Purchase Units, which may be issued pursuant to one or more agreements (each, a “Unit
Agreement”) proposed to be entered into by the Company and one or more unit agents to be named therein; and (ix) such indeterminate
number of shares of Common Stock, Preferred Stock or Depositary Shares and indeterminate amount of Debt Securities as may be issued upon
conversion, exchange or exercise, as applicable, of any Preferred Stock, Debt Securities, Depositary Shares or Warrants or settlement
of any Purchase Contracts, Purchase Units or Units, including such shares of Common Stock or Preferred Stock as may be issued pursuant
to anti-dilution adjustments determined at the time of offering (collectively, “Indeterminate Securities”). The Common Stock,
Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Purchase Units, Units and Indeterminate Securities
offered pursuant to the Registration Statement are collectively referred to herein as the “Securities.”
Ameris Bancorp
August 8, 2023
Page 2
This opinion is being furnished
in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions
stated herein, we have examined and relied upon the following: (i) the Registration Statement; (ii) an executed copy of the
Subordinated Debt Indenture, incorporated by reference as an exhibit to the Registration Statement; (iii) the form of Senior Debt
Indenture, filed as an exhibit to the Registration Statement; (iv) a copy of the Company’s Restated Articles of Incorporation
certified by the Secretary of State of the State of Georgia as of February 24, 2023; (v) a copy of the Company’s Bylaws,
as amended and restated through February 23, 2023; and (vi) a copy of certain resolutions of the Board of Directors of the Company
(the “Board”), adopted on July 24, 2023.
We have also examined originals
or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and
receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as
we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have
assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons,
the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us
as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant
to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company and others and of public officials.
We do not express any opinion
with respect to the laws of any jurisdiction other than: (i) the laws of the State of Georgia, including the General Business Corporation
Code (the “GBCC”); and (ii) the laws of the State of New York; provided, however, that the opinions in paragraphs 3,
4, 5, 6, 7 and 8 below are limited to the laws of the State of New York that, in our professional judgment, are normally applicable to
transactions of the type contemplated by the Indentures, the Depositary Agreement, the Warrant Agreement,
the Purchase Contract Agreement, the Purchase Unit Agreement and the Unit Agreement, respectively, and, with respect to such opinions
in paragraphs 3, 4, 5, 6, 7 and 8 below, we do not express any opinion herein concerning any other laws (all of the foregoing being referred
to as “Opined-on Law”). This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred
beyond the matters expressly stated herein. The Securities may be issued from time to time on a delayed or continuous basis, and this
opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change
with possible retroactive effect.
Ameris Bancorp
August 8, 2023
Page 3
As used herein, “Transaction
Documents” means the Indentures and any supplemental indentures thereto, the Depositary Agreements, the Warrant Agreements, the
Purchase Contract Agreements, the Purchase Unit Agreements, the Unit Agreements and any applicable underwriting or purchase agreement.
The opinions stated in paragraphs
1 through 8 below presume that all of the following (collectively, the “general conditions”) shall have occurred prior to
the issuance of the Securities referred to therein: (i) the Registration Statement, as finally amended (including all necessary post-effective
amendments), has become effective under the Securities Act; (ii) an appropriate prospectus supplement or term sheet with respect
to such Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable Rules and Regulations;
(iii) the applicable Transaction Documents shall have been duly authorized, executed and delivered by the Company and the other parties
thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the
underwriting agreement or purchase agreement with respect thereto; (iv) the Board, including any duly authorized committee thereof,
shall have taken all necessary corporate action to approve the issuance and sale of such Securities and related matters and appropriate
officers of the Company have taken all related action as directed by or under the direction of the Board; and (v) the terms of the
applicable Transaction Documents and the issuance and sale of such Securities have been duly established in conformity with the Articles
of Incorporation of the Company so as not to violate any applicable law, the Articles of Incorporation of the Company or the Bylaws of
the Company, or result in a default under or breach of any agreement or instrument binding upon the Company, and so as to comply with
any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
Based upon the foregoing and
subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. With
respect to any shares of Common Stock offered by the Company, including any Indeterminate Securities constituting Common Stock (the “Offered
Common Stock”), when: (a) the general conditions shall have been satisfied; (b) if the Offered Common Stock is to be certificated,
certificates in the form required under the GBCC representing the shares of Offered Common Stock are duly executed and countersigned;
and (c) the shares of Offered Common Stock are registered in the Company’s share registry and delivered upon payment of the
agreed-upon consideration therefor, the shares of Offered Common Stock, when issued and sold or otherwise distributed in accordance with
the provisions of the applicable Transaction Document, will be duly authorized by all requisite corporate action on the part of the Company
under the GBCC and validly issued, fully paid and nonassessable.
Ameris Bancorp
August 8, 2023
Page 4
2. With
respect to the shares of any series of Preferred Stock offered by the Company, including any Indeterminate Securities constituting Preferred
Stock of such series (the “Offered Preferred Stock”), when: (a) the general conditions shall have been satisfied; (b) the
Board, or a duly authorized committee thereof, has duly adopted Articles of Amendment to the Articles of Incorporation of the Company
for the Offered Preferred Stock in accordance with the GBCC (the “Articles of Amendment”); (c) the filing of the Articles
of Amendment with the Secretary of State of the State of Georgia has duly occurred; (d) if the Offered Preferred Stock is to be certificated,
certificates in the form required under the GBCC representing the shares of Offered Preferred Stock are duly executed and countersigned;
and (e) the shares of Offered Preferred Stock are registered in the Company’s share registry and delivered upon payment of
the agreed-upon consideration therefor, the shares of Offered Preferred Stock, when issued and sold or otherwise distributed in accordance
with the provisions of the applicable Transaction Document, will be duly authorized by all requisite corporate action on the part of the
Company under the GBCC and validly issued, fully paid and nonassessable.
3. With
respect to any series of Debt Securities offered by the Company, including any Indeterminate Securities constituting Debt Securities of
such series (the “Offered Debt Securities”), when: (a) the general conditions shall have been satisfied; (b) a Form T-1
for the trustee with respect to the applicable Indenture has been filed under the Trust Indenture Act of 1939; (c) the issuance,
sale and terms of the Offered Debt Securities and related matters have been approved and established in conformity with the applicable
Transaction Documents; and (d) the certificates evidencing the Offered Debt Securities have been issued in a form that complies with
the provisions of the applicable Transaction Documents and have been duly executed and authenticated in accordance with the provisions
of the applicable Indenture and any other applicable Transaction Documents and issued and sold or otherwise distributed in accordance
with the provisions of the applicable Transaction Document upon payment of the agreed-upon consideration therefor, the Offered Debt Securities
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms
under the laws of the State of New York.
4. With
respect to any Depositary Shares offered by the Company, including any Indeterminate Securities constituting Depositary Shares (the “Offered
Depositary Shares”), when: (a) the general conditions shall have been satisfied; (b) the Preferred Stock relating to such
Offered Depositary Shares has been duly authorized for issuance by the Company; (c) the Offered Depositary Shares have been duly
executed, delivered, countersigned, issued and sold in accordance with the provisions of the applicable Depositary Agreement, and the
Offered Depositary Shares have been delivered to the Bank Depositary for deposit in accordance with the applicable Depositary Agreement;
and (d) the Receipts evidencing the Depositary Shares have been duly issued against deposit of the related shares of Preferred Stock
with the Bank Depositary in accordance with the applicable Depositary Agreement, such Depositary Agreement will constitute a legally valid
and binding obligation of the Company, enforceable against the Company in accordance with its respective terms under the laws of the State
of New York.
5. With
respect to any Warrants offered by the Company (the “Offered Warrants”), when: (a) the general conditions shall have
been satisfied; (b) the Common Stock, Preferred Stock and/or Debt Securities for which the Offered Warrants are exercisable have
been duly authorized for issuance by the Company; and (c) certificates evidencing the Offered Warrants have been duly executed, delivered
and countersigned in accordance with the provisions of the applicable Warrant Agreement, the Offered Warrants, when issued and sold or
otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed-upon consideration
therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective
terms under the laws of the State of New York.
Ameris Bancorp
August 8, 2023
Page 5
6. With
respect to any Purchase Contracts offered by the Company (the “Offered Purchase Contracts”), when: (a) the general conditions
shall have been satisfied; (b) the Common Stock, Preferred Stock and/or Debt Securities relating to such Offered Purchase Contracts
have been duly authorized for issuance by the Company; and (c) the Offered Purchase Contracts have been duly executed, delivered
and countersigned in accordance with the provisions of the applicable Purchase Contract Agreement, the Offered Purchase Contracts, when
issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the
agreed-upon consideration therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance
with their respective terms under the laws of the State of New York.
7. With
respect to any Purchase Units offered by the Company (the “Offered Purchase Units”), when: (a) the general conditions
shall have been satisfied; (b) the Purchase Contract, Debt Securities, Preferred Stock or other securities or obligations included
in such Offered Purchase Units have been duly authorized for issuance by the Company or the applicable third party (and are enforceable
against the Company or such third party, as applicable); and (c) certificates evidencing the Offered Purchase Units have been duly
executed, delivered and countersigned in accordance with the provisions of the applicable Purchase Unit Agreement, the Offered Purchase
Units, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment
of the agreed-upon consideration therefor, will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms under the laws of the State of New York.
8. With
respect to any Units offered by the Company (the “Offered Units”), when: (a) the general conditions shall have been satisfied;
(b) the Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts or Purchase Units or other
securities relating to the Offered Units have been duly authorized for issuance by the Company (and are enforceable against the Company);
and (c) certificates evidencing the Offered Units have been duly executed, delivered and countersigned in accordance with the provisions
of the applicable Unit Agreement, the Offered Units, when issued and sold or otherwise distributed in accordance with the provisions of
the applicable Transaction Document upon payment of the agreed-upon consideration therefor, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
The opinions stated herein
are subject to the following qualifications:
(a) we
do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, preference and other similar laws and governmental orders affecting creditors’ rights generally, and the opinions
stated herein are limited by such laws and orders and by general principles of equity (regardless of whether enforcement is sought in
equity or at law);
(b) we
do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction
Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable
to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
Ameris Bancorp
August 8, 2023
Page 6
(c) except
to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the
valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms;
(d) we
do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification,
contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect
that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any
such provision purports to waive or alter, or has the effect of, waiving or altering any statute of limitations;
(e) we
do not express any opinion with respect to the enforceability of any provision of any Transaction Document to the extent that such section
purports to bind the Company to the exclusive jurisdiction of any particular federal court or courts;
(f) we
call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case
on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in
addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal
courts of the United States of America in any action arising out of or relating to any Transaction Document;
(g) we
have assumed that any agent of service will have accepted appointment as agent to receive service of process and call to your attention
that we do not express any opinion if and to the extent such agent shall resign such appointment. Further, we do not express any opinion
with respect to the irrevocability of the designation of such agent to receive service of process;
(h) we
have assumed that the choice of New York law to govern the Senior Debt Indenture and any supplemental indentures thereto is a valid and
legal provision;
(i) we
have assumed that the laws of the State of New York will be chosen to govern any Depositary Agreement, Warrant Agreement, Purchase Contract
Agreement, Purchase Unit Agreement and Unit Agreement and that such choice is and will be a valid and legal provision;
(j) we
do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document providing for indemnity
by any party thereto against any loss in obtaining the currency due to such party under any Transaction Document from a court judgment
in another currency;
(k) we
have assumed that the choice of a currency other than U.S. dollars as the currency in which any Securities may be denominated does not
contravene any exchange control or other laws of the jurisdiction of any such currency, and further we call to your attention that a court
may not award a judgment in any currency other than U.S. dollars; and
(l) to
the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained
in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in
each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles
of comity and constitutionality.
Ameris Bancorp
August 8, 2023
Page 7
In addition, in rendering
the foregoing opinions we have assumed that:
(a) neither
the execution and delivery by the Company of the Transaction Documents nor the performance by the Company of its obligations thereunder,
including the issuance and sale of the applicable Securities: (i) constitutes or will constitute a violation of, or a default under,
any lease, indenture, agreement or other instrument to which the Company or its property is subject; (ii) contravenes or will contravene
any order or decree of any governmental authority to which the Company or its property is subject; or (iii) violates or will violate
any law, rule or regulation to which the Company or its property is subject (except that we do not make the assumption set forth
in this clause (iii) with respect to the Opined-on Law); and
(b) neither
the execution and delivery by the Company of the Transaction Documents nor the performance by the Company of its obligations thereunder,
including the issuance and sale of the applicable Securities, requires or will require the consent, approval, licensing or authorization
of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
We hereby consent to the reference
to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby
consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and
Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise
you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
|
Sincerely, |
|
|
|
/s/ Smith, Gambrell & Russell, LLP |
|
|
|
Smith, Gambrell & Russell, LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our reports
dated February 28, 2023, with respect to the consolidated financial statements of Ameris Bancorp, and the effectiveness of internal
control over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading "Experts"
in the prospectus.
/s/ KPMG LLP
Atlanta, Georgia
August 8, 2023
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the
incorporation by reference in this Registration Statement on Form S-3 of Ameris Bancorp of our report dated February 26,
2021 on the consolidated statements of income, comprehensive income, shareholders’ equity, and cash flows for the year ended December 31,
2020, appearing in the Annual Report on Form 10-K of Ameris Bancorp for the year ended December 31, 2022.
Atlanta, Georgia
August 8, 2023
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address and telephone number of agent for
service)
Ameris Bancorp
(Exact name of obligor as specified in its charter)
Georgia |
58-1456434 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia 30305
(Address of principal executive offices, including
zip code)
Senior Debt Securities
(Title of the indenture securities)
ITEM 1. | GENERAL INFORMATION. |
Furnish the following information
as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise
corporate trust powers.
ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records of the
trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM
3 – 15. Not applicable.
ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National
Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 5. | Not applicable. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939,
attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising
or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
| 8. | Not applicable. |
| 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 8th day of August, 2023.
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
| By: |
/s/ Michael H. Wass |
| Name: |
Michael H. Wass |
| Title: |
Vice President |
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to
perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The
title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association
shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted
at its main office and its branches.
THIRD. The board of directors of this
association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member
limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or
by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred
stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination
of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever
value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number
of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall
the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year
and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite
the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until
there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting
of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the
main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws,
or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election
is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day
within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders
representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose
of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance
exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors
to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the
manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may
not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each
common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors
may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote
for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be
delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the
notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast
for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by
delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders
at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the
director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided,
however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against
the director's removal.
FIFTH. The
authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars
($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United
States.
No holder of shares of the capital stock of any
class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association,
whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds
of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all
matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of
association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series
so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as
a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be
issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class
or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board
of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors
for the share dividend.
Unless otherwise provided in the bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares
pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional
shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon
surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association's
stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction,
or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder;
or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled
to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to
vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest.
The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights.
The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged
for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at
the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time,
may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified
as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting
rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification
of all or part of securities into securities of another class or series.
SIXTH. The
board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and
shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact
the business of this association.
A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent
with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association's management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein
shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall
raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs
of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall
have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval
of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits
and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits
of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change
the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders,
subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of
this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this
association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may
call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice
of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting
by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary,
the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth,
the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined
in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her
heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection
with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative
or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however,
that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board
of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given
under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon
(a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors
or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators)
is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of
the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board
of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize
independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether
the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the
rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the
basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on
the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may
be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors
or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement
of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of
any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter
be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the
board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a
majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification
is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding
or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association
may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock
of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association
for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 28, 2022)
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1.
Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may properly
come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington,
State of Delaware, at 1:00 o'clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board
of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting
shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to
each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made
on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent day within
60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing
two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2.
Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called
for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not less than fifty
percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage
prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing
on the books of the association a notice stating the purpose of the meeting.
The board of directors may fix a record date for determining shareholders
entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting.
The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for
the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders
or the board of directors to amend the articles of association or bylaws, whether or not such bylaws may be amended by the board of directors
in the absence of shareholder approval.
If an annual or special shareholders' meeting is adjourned to a different
date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting
before adjournment, unless any additional items of business are to be considered, or the association becomes aware of an intervening
event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new
record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to persons who are shareholders
as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten
days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3.
Nominations of Directors. Nominations for election to the board of directors may be made by the board of directors or by any
stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations,
other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or
mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than
50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion,
be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
Section 4.
Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or
employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments
of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted
proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at
any time during a meeting shall be accepted.
Section 5.
Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but
less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority
of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law
or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for
the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1.
Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of the association.
Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2.
Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted
the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to
time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3.
Organization Meeting. The secretary or treasurer, upon receiving the certificate of the judges of the result of any election,
shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association,
or at such other place in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and
appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter
as practicable, and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors
present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4.
Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place, date and
hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall
be held, without notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at
the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls
upon a holiday, the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5.
Special Meetings. Special meetings of the board of directors may be called by the Chairman of the Board of the association,
or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail,
or in person stating the time and place of each special meeting.
Section 6.
Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided
by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without
further notice. If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business
may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present,
the board of directors may take action through the vote of a majority of the directors who are in attendance.
Section 7.
Meetings by Conference Telephone. Any one or more members of the board of directors or any committee thereof may participate
in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such
meeting.
Section 8.
Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined
by the person presiding at the meeting.
Section 9.
Removal of Directors. Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred
to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice
of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled
to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action,
by vote of a majority of the entire Board of Directors.
Section 10.
Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according
to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at
a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than
a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders
at a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each
shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies
being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur
at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director
may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for
the management, supervision, and administration of the association. The board of directors may delegate its power, but none of its responsibilities,
to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized
by committees of the board of directors before such policies become effective. Each committee must have one or more member(s), and who
may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board
of directors. Provisions of the articles of association and these bylaws governing place of meetings, notice of meeting, quorum and voting
requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of
members to it must be approved by the board of directors.
Section 1.
Loan Committee. There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors
annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences
of debt, to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts,
and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated.
The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of
directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes
of the board of directors.
Section 2.
Investment Committee. There shall be an investment committee composed of not less than 2 directors, appointed by the board
of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the
investment policy, to recommend amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to
exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that
may be lawfully delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next
regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3.
Examining Committee. There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers,
appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar
year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors
responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next
regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls
and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs
of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph of this section
3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee
of the association's parent corporation by a resolution duly adopted by the board of directors.
Section 4.
Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5.
Other Committees. The board of directors may appoint, from time to time, from its own members, compensation, special litigation
and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (4) | Amend articles of association; |
| (5) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences
and limitations of a class or series of shares. |
Section 6.
Committee Members' Fees. Committee members may receive a fee for their services as committee members and traveling and other
out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid
for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not
attended. The amount of the fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1.
Officers. The board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following
the annual meeting of the shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one
or more Vice Presidents however denominated, a Corporate Secretary, a Treasurer, a Chief Auditor, and such other officers as it may determine.
At the Annual Reorganization Meeting, the board of directors shall also elect or reelect all of the officers of the association to hold
office until the next Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the officers of the association
may be elected as follows and shall hold office until the next Annual Reorganization meeting unless otherwise determined by the board
of directors or such authorized officer(s): The head of the Human Resources Department of M&T Bank or his or her designee or designees,
may appoint officers up to and including the rank of Senior Executive Vice President, including (without limitation as to title or number)
one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers and Assistant Auditors, and any other officer positions as they deem necessary and appropriate, except for any “SEC-Reporting
Officers” of M&T Bank Corporation for purposes of Section 16 of the Securities Exchange Act of 1934, as such officers
may only be appointed by the Board of Directors.
Section 2.
Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to serve
at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the
carrying out of the policies adopted or approved by the board of directors; shall have general executive powers, as well as the specific
powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred
upon or assigned by the board of directors.
Section 3.
President. The board of directors shall appoint one of its members to be the president of the association. In the absence of
the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers
and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president,
or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be
conferred or assigned by the board of directors.
Section 4.
Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such powers
and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence
of the president, to perform all the duties of the president.
Section 5.
Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary
of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the
giving of all notices required by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association;
shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other
powers and duties pertaining by law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall also perform
such other duties as may be assigned from time to time, by the board of directors.
Section 6.
Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or
more officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches
and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or desirable to
transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to
their several offices, or as may be conferred upon or assigned to them by the board of directors, the chairperson of the board, or the
president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7.
Tenure of Office. The president and all other officers shall hold office for the current year for which the board of directors
was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall
be filled promptly by the board of directors.
Section 8.
Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the
notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1.
Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board
of directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities
or cause suitable audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers
have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles.
Such committee: (1) must not include any officers of the bank or an affiliate who participate significantly in the administration
of the bank’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee
to which the board of directors has delegated power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section
1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit
committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2.
Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 3.
Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary
relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest
in the association investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under applicable law.
ARTICLE VI
Stock and Stock Certificates
Section 1.
Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which
all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's
shares, succeed to all rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and
related matters and to protect it against fraudulent transfers.
Section 2.
Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed)
and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other
officer appointed by the board of directors for that purpose, to be known as an authorized officer, and the seal of the association shall
be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books
of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost,
stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial
owner of shares that are registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may
set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1.
Seal. The seal of the association shall be in such form as may be determined from time to time by the board of directors. The
president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the
board of directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal
on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1.
Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2.
Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations,
receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by
any officer elected or appointed pursuant to Article IV of these bylaws. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors
may from time to time direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3.
Records. The articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors,
and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes
of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4.
Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and
sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994,
and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5.
Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party”
shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or
administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened,
pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative,
in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative
proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is
assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with
respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next
succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses,
including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with
an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators)
only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or
her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association
in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a
quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her
heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified
individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he
or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect
the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party
(or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be
given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding
upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs,
executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors
or administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of the board of directors
are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board
may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have
been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may
rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are
named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent
legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification
and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring
prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of these bylaws with respect
to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such
rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as
if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought
were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided
in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated
party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s
articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing
such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing,
the rights of indemnification and to the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights,
pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any
such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and
expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board
of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in
these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against
such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1.
Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place
at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2.
Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of directors,
by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany
any such change.
I,
, certify that: (1) I am the duly constituted (secretary
or treasurer) of and
secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are
the bylaws of the association, and all of them are now lawfully in force and effect.
I
have hereunto affixed my official signature on this day of .
_________________________________________
(Secretary or Treasurer)
The association's shareholders may amend or repeal the bylaws even
though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
Dated: August 8, 2023 | By: |
/s/
Michael H. Wass |
| |
Name: Michael H. Wass |
| |
Title: Vice President |
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on June 30, 2023
| |
Thousands of Dollars | |
ASSETS | |
| | |
Cash and balances due from depository institutions: | |
| 669,843 | |
Securities: | |
| 5,524 | |
Federal funds sold and securities purchased under agreement to resell: | |
| 0 | |
Loans and leases held for sale: | |
| 0 | |
Loans and leases net of unearned income, allowance: | |
| 50,512 | |
Premises and fixed asset | |
| 30,423 | |
Other real estate owned: | |
| 55 | |
Investments in unconsolidated subsidiaries and associated companies: | |
| 0 | |
Direct and indirect investments in real estate ventures: | |
| 0 | |
Intangible assets: | |
| 0 | |
Other assets: | |
| 70,512 | |
Total Assets: | |
| 826,814 | |
| |
| | |
| |
Thousands of Dollars | |
LIABILITIES | |
| | |
Deposits | |
| 8,937 | |
Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
Other borrowed money: | |
| 0 | |
Other Liabilities: | |
| 7,870 | |
Total Liabilities | |
| 87,807 | |
| |
| | |
| |
Thousands of Dollars | |
EQUITY CAPITAL | |
| | |
Common Stock | |
| 1,000 | |
Surplus | |
| 342,783 | |
Retained Earnings | |
| 395,647 | |
Accumulated other comprehensive income | |
| (423 | ) |
Total Equity Capital | |
| 739,007 | |
| |
| | |
Total Liabilities and Equity Capital | |
| 826,814 | |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address and telephone number of agent for
service)
Ameris Bancorp
(Exact name of obligor as specified in its charter)
Georgia |
58-1456434 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
3490 Piedmont Road N.E., Suite 1550
Atlanta, Georgia 30305
(Address of principal executive offices, including
zip code)
Subordinated Debt Securities
(Title of the indenture securities)
ITEM 1. | GENERAL INFORMATION. |
Furnish the following information
as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise
corporate trust powers.
ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records of the
trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM
3 – 15. Not applicable.
ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National
Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 5. | Not applicable. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939,
attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising
or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
| 8. | Not applicable. |
| 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 8th day of August, 2023.
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
| By: |
/s/ Michael H. Wass |
| Name: |
Michael H. Wass |
| Title: |
Vice President |
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to
perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The
title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association
shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted
at its main office and its branches.
THIRD. The board of directors of this
association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member
limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or
by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred
stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination
of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever
value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number
of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall
the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year
and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite
the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until
there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting
of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the
main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws,
or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election
is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day
within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders
representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose
of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance
exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors
to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the
manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may
not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each
common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors
may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote
for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be
delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the
notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast
for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by
delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders
at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the
director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided,
however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against
the director's removal.
FIFTH. The
authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars
($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United
States.
No holder of shares of the capital stock of any
class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association,
whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds
of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all
matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of
association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series
so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as
a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be
issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class
or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board
of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors
for the share dividend.
Unless otherwise provided in the bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares
pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional
shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon
surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association's
stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction,
or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder;
or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled
to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to
vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest.
The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights.
The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged
for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at
the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time,
may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified
as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting
rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification
of all or part of securities into securities of another class or series.
SIXTH. The
board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and
shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact
the business of this association.
A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent
with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association's management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein
shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall
raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs
of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall
have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval
of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits
and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits
of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change
the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders,
subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of
this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this
association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may
call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice
of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting
by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary,
the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth,
the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined
in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her
heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection
with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative
or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however,
that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board
of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given
under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon
(a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors
or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators)
is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of
the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board
of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize
independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether
the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the
rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the
basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on
the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may
be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors
or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement
of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of
any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter
be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the
board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a
majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification
is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding
or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association
may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock
of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association
for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 28, 2022)
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1.
Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may properly
come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington,
State of Delaware, at 1:00 o'clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board
of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting
shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to
each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made
on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent day within
60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing
two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2.
Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called
for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not less than fifty
percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage
prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing
on the books of the association a notice stating the purpose of the meeting.
The board of directors may fix a record date for determining shareholders
entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting.
The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for
the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders
or the board of directors to amend the articles of association or bylaws, whether or not such bylaws may be amended by the board of directors
in the absence of shareholder approval.
If an annual or special shareholders' meeting is adjourned to a different
date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting
before adjournment, unless any additional items of business are to be considered, or the association becomes aware of an intervening
event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new
record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to persons who are shareholders
as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten
days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3.
Nominations of Directors. Nominations for election to the board of directors may be made by the board of directors or by any
stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations,
other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or
mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than
50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion,
be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
Section 4.
Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or
employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments
of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted
proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at
any time during a meeting shall be accepted.
Section 5.
Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but
less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority
of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law
or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for
the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1.
Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of the association.
Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2.
Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted
the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to
time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3.
Organization Meeting. The secretary or treasurer, upon receiving the certificate of the judges of the result of any election,
shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association,
or at such other place in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and
appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter
as practicable, and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors
present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4.
Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place, date and
hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall
be held, without notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at
the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls
upon a holiday, the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5.
Special Meetings. Special meetings of the board of directors may be called by the Chairman of the Board of the association,
or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail,
or in person stating the time and place of each special meeting.
Section 6.
Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided
by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without
further notice. If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business
may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present,
the board of directors may take action through the vote of a majority of the directors who are in attendance.
Section 7.
Meetings by Conference Telephone. Any one or more members of the board of directors or any committee thereof may participate
in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such
meeting.
Section 8.
Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined
by the person presiding at the meeting.
Section 9.
Removal of Directors. Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred
to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice
of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled
to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action,
by vote of a majority of the entire Board of Directors.
Section 10.
Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according
to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at
a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than
a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders
at a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each
shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies
being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur
at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director
may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for
the management, supervision, and administration of the association. The board of directors may delegate its power, but none of its responsibilities,
to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized
by committees of the board of directors before such policies become effective. Each committee must have one or more member(s), and who
may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board
of directors. Provisions of the articles of association and these bylaws governing place of meetings, notice of meeting, quorum and voting
requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of
members to it must be approved by the board of directors.
Section 1.
Loan Committee. There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors
annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences
of debt, to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts,
and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated.
The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of
directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes
of the board of directors.
Section 2.
Investment Committee. There shall be an investment committee composed of not less than 2 directors, appointed by the board
of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the
investment policy, to recommend amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to
exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that
may be lawfully delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next
regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3.
Examining Committee. There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers,
appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar
year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors
responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next
regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls
and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs
of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph of this section
3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee
of the association's parent corporation by a resolution duly adopted by the board of directors.
Section 4.
Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5.
Other Committees. The board of directors may appoint, from time to time, from its own members, compensation, special litigation
and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (4) | Amend articles of association; |
| (5) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences
and limitations of a class or series of shares. |
Section 6.
Committee Members' Fees. Committee members may receive a fee for their services as committee members and traveling and other
out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid
for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not
attended. The amount of the fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1.
Officers. The board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following
the annual meeting of the shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one
or more Vice Presidents however denominated, a Corporate Secretary, a Treasurer, a Chief Auditor, and such other officers as it may determine.
At the Annual Reorganization Meeting, the board of directors shall also elect or reelect all of the officers of the association to hold
office until the next Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the officers of the association
may be elected as follows and shall hold office until the next Annual Reorganization meeting unless otherwise determined by the board
of directors or such authorized officer(s): The head of the Human Resources Department of M&T Bank or his or her designee or designees,
may appoint officers up to and including the rank of Senior Executive Vice President, including (without limitation as to title or number)
one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers and Assistant Auditors, and any other officer positions as they deem necessary and appropriate, except for any “SEC-Reporting
Officers” of M&T Bank Corporation for purposes of Section 16 of the Securities Exchange Act of 1934, as such officers
may only be appointed by the Board of Directors.
Section 2.
Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to serve
at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the
carrying out of the policies adopted or approved by the board of directors; shall have general executive powers, as well as the specific
powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred
upon or assigned by the board of directors.
Section 3.
President. The board of directors shall appoint one of its members to be the president of the association. In the absence of
the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers
and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president,
or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be
conferred or assigned by the board of directors.
Section 4.
Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such powers
and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence
of the president, to perform all the duties of the president.
Section 5.
Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary
of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the
giving of all notices required by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association;
shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other
powers and duties pertaining by law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall also perform
such other duties as may be assigned from time to time, by the board of directors.
Section 6.
Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or
more officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches
and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or desirable to
transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to
their several offices, or as may be conferred upon or assigned to them by the board of directors, the chairperson of the board, or the
president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7.
Tenure of Office. The president and all other officers shall hold office for the current year for which the board of directors
was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall
be filled promptly by the board of directors.
Section 8.
Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the
notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1.
Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board
of directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities
or cause suitable audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers
have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles.
Such committee: (1) must not include any officers of the bank or an affiliate who participate significantly in the administration
of the bank’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee
to which the board of directors has delegated power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section
1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit
committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2.
Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 3.
Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary
relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest
in the association investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under applicable law.
ARTICLE VI
Stock and Stock Certificates
Section 1.
Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which
all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's
shares, succeed to all rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and
related matters and to protect it against fraudulent transfers.
Section 2.
Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed)
and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other
officer appointed by the board of directors for that purpose, to be known as an authorized officer, and the seal of the association shall
be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books
of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost,
stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial
owner of shares that are registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may
set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1.
Seal. The seal of the association shall be in such form as may be determined from time to time by the board of directors. The
president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the
board of directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal
on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1.
Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2.
Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations,
receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by
any officer elected or appointed pursuant to Article IV of these bylaws. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors
may from time to time direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3.
Records. The articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors,
and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes
of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4.
Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and
sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994,
and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5.
Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party”
shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or
administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened,
pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative,
in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative
proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is
assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with
respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next
succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses,
including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with
an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators)
only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or
her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association
in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a
quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her
heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified
individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he
or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect
the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party
(or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be
given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding
upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs,
executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors
or administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of the board of directors
are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board
may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have
been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may
rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are
named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent
legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification
and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring
prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of these bylaws with respect
to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such
rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as
if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought
were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided
in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated
party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s
articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing
such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing,
the rights of indemnification and to the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights,
pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any
such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and
expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board
of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in
these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against
such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1.
Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place
at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2.
Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of directors,
by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany
any such change.
I,
, certify that: (1) I am the duly constituted (secretary
or treasurer) of and
secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are
the bylaws of the association, and all of them are now lawfully in force and effect.
I
have hereunto affixed my official signature on this day of .
_________________________________________
(Secretary or Treasurer)
The association's shareholders may amend or repeal the bylaws even
though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
Dated: August 8, 2023 | By: |
/s/
Michael H. Wass |
| |
Name: Michael H. Wass |
| |
Title: Vice President |
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on June 30, 2023
| |
Thousands of Dollars | |
ASSETS | |
| | |
Cash and balances due from depository institutions: | |
| 669,843 | |
Securities: | |
| 5,524 | |
Federal funds sold and securities purchased under agreement to resell: | |
| 0 | |
Loans and leases held for sale: | |
| 0 | |
Loans and leases net of unearned income, allowance: | |
| 50,512 | |
Premises and fixed asset | |
| 30,423 | |
Other real estate owned: | |
| 55 | |
Investments in unconsolidated subsidiaries and associated companies: | |
| 0 | |
Direct and indirect investments in real estate ventures: | |
| 0 | |
Intangible assets: | |
| 0 | |
Other assets: | |
| 70,512 | |
Total Assets: | |
| 826,814 | |
| |
| | |
| |
Thousands of Dollars | |
LIABILITIES | |
| | |
Deposits | |
| 8,937 | |
Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
Other borrowed money: | |
| 0 | |
Other Liabilities: | |
| 7,870 | |
Total Liabilities | |
| 87,807 | |
| |
| | |
| |
Thousands of Dollars | |
EQUITY CAPITAL | |
| | |
Common Stock | |
| 1,000 | |
Surplus | |
| 342,783 | |
Retained Earnings | |
| 395,647 | |
Accumulated other comprehensive income | |
| (423 | ) |
Total Equity Capital | |
| 739,007 | |
| |
| | |
Total Liabilities and Equity Capital | |
| 826,814 | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
AMERIS
BANCORP
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial Effective Date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
Newly Registered Securities |
Fees to Be Paid |
Equity |
Common
Stock, $1.00 par value(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Equity |
Preferred
Stock(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Debt |
Debt
Securities(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Equity |
Depositary
Shares(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Other(4) |
Warrants(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Other(4) |
Purchase
Contracts(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Other(4) |
Purchase
Units(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
|
Other(4) |
Units(1) |
Rule 456(b) and Rule 457(r)(2) |
(3) |
(3) |
(3) |
(2) |
(2) |
|
|
|
|
Fees
Previously Paid |
|
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
|
|
|
Carry Forward Securities |
Carry Forward Securities |
|
N/A |
N/A |
N/A |
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
|
Total Offering Amounts |
|
N/A |
|
N/A |
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
N/A |
|
|
|
|
|
Total Fee Offsets |
|
|
|
N/A |
|
|
|
|
|
Net Fee Due |
|
|
|
N/A |
|
|
|
|
(1) Separate consideration may or may not
be received for securities that are issuable on exercise, conversion or exchange of other securities.
(2) The registrant is relying on Rule 456(b) and
Rule 457(r) under the Securities Act of 1933, as amended (the “Securities Act”), to defer payment of all of the
registration fee. In connection with the securities offered hereby, the registrant will pay “pay-as-you-go registration fees”
in accordance with Rule 456(b) under the Securities Act. The registrant will calculate the registration fee applicable to an
offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
(3) An indeterminate aggregate initial offering
price and number of securities of each identified class is being registered and may from time to time be offered, issued or sold at indeterminate
prices.
(4) Representing rights or obligations to
purchase common stock, preferred stock, debt securities or other securities, property or assets.
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