EXHIBIT
10.1
AMENDED
AND RESTATED TRUST AGREEMENT
OF
SERVISFIRST
CAPITAL TRUST II
MARCH
15, 2010
TABLE
OF CONTENTS
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Page
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ARTICLE I
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INTERPRETATION AND DEFINITIONS
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Section 1.1
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Definitions
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1
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ARTICLE II
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TRUST INDENTURE ACT
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Section 2.1
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Trust
Indenture Act; Application
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8
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Section 2.2
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Lists
of Holders of Securities
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9
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Section 2.3
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Reports
by the Property Trustee
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9
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Section 2.4
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Periodic
Reports to Property Trustee
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9
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Section 2.5
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Evidence
of Compliance with Conditions Precedent
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11
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Section 2.6
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Events
of Default; Waiver
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11
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Section 2.7
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Event
of Default; Notice
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13
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ARTICLE III
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ORGANIZATION
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Section 3.1
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Name
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13
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Section 3.2
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Office
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13
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Section 3.3
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Purpose
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14
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Section 3.4
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Authority
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14
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Section 3.5
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Title
to Property of the Trust
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14
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Section 3.6
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Powers
and Duties of the Administrative Trustees
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14
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Section 3.7
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Prohibition
of Actions by the Trust and the Trustees
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17
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Section 3.8
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Powers
and Duties of the Property Trustee
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18
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Section 3.9
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Certain
Duties and Responsibilities of the Property Trustee
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20
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Section 3.10
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Certain
Rights of Property Trustee
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21
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Section 3.11
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Delaware
Trustee
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24
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Section 3.12
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Execution
of Documents
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24
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Section 3.13
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Not
Responsible for Recitals or Issuance of Securities
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24
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Section 3.14
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Duration
of Trust
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25
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Section 3.15
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Mergers
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25
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ARTICLE IV
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SPONSOR
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Section 4.1
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Depositor's
Purchase of Common Securities
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27
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Section 4.2
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Responsibilities
of the Depositor
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27
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Section 4.3
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Right
to Proceed
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27
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ARTICLE V
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TRUSTEES; CONVERSION AGENT
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Section 5.1
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Number
of Trustees: Appointment of Co-Trustee
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28
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Section 5.2
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Delaware
Trustee
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28
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Section 5.3
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Property
Trustee; Eligibility
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29
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Section 5.4
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Certain
Qualifications of Administrative Trustees and Delaware Trustee
Generally
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30
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Section 5.5
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Administrative
Trustees
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30
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Section 5.6
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Delaware
Trustee
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30
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Section 5.7
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Appointment,
Removal and Resignation of Trustees
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31
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Section 5.8
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Vacancies
Among Trustees
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32
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Section 5.9
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Effect
of Vacancies
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32
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Section 5.10
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Meetings
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33
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Section 5.11
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Delegation
of Power
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33
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Section 5.12
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Merger,
Conversion, Consolidation or Succession to Business
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33
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Section 5.13
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Appointment
of Conversion Agent
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34
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ARTICLE VI
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DISTRIBUTIONS
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Section 6.1
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Distributions
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34
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ARTICLE VII
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ISSUANCE OF SECURITIES
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Section 7.1
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General
Provisions Regarding Securities
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35
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Section 7.2
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Execution
and Authentication
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35
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Section 7.3
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Form
and Dating
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36
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Section 7.4
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Registrar
and Paying Agent
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38
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Section 7.5
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Paying
Agent to Hold Money in Trust
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38
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Section 7.6
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Replacement
Securities
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38
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Section 7.7
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Outstanding
Preferred Securities
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39
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Section 7.8
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Preferred
Securities in Treasury
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39
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Section 7.9
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Temporary
Securities
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39
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Section 7.10
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Cancellation
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40
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Section 7.11
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CUSIP
Numbers
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40
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ARTICLE VIII
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TERMINATION OF TRUST
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Section 8.1
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Termination
of Trust
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41
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Section 8.2
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Liquidation
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42
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ARTICLE IX
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TRANSFER OF INTERESTS
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Section 9.1
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Transfer
of Securities
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43
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Section 9.2
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Transfer
Procedures and Restrictions
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44
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Section 9.3
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Deemed
Security Holders
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48
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Section 9.4
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Restriction
on Transfers
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48
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Section 9.5
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Book
Entry Interests
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48
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Section 9.6
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Notices
to Clearing Agency
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49
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Section 9.7
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Appointment
of Successor Clearing Agency
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49
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ARTICLE X
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LIMITATION OF LIABILITY OF
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HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
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Section 10.1
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Liability
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50
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Section 10.2
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Exculpation
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50
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Section 10.3
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Fiduciary
Duty
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51
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Section 10.4
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Indemnification
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52
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Section 10.5
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Outside
Businesses
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55
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ARTICLE XI
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ACCOUNTING
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Section 11.1
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Fiscal
Year
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55
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Section 11.2
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Certain
Accounting Matters
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55
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Section 11.3
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Banking
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56
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Section 11.4
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Withholding
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56
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ARTICLE XII
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AMENDMENTS AND MEETINGS
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Section 12.1
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Amendments
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57
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Section 12.2
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Meetings
of the Holders of Securities; Action by Written Consent
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59
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ARTICLE XIII
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REPRESENTATIONS OF PROPERTY TRUSTEE
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AND DELAWARE TRUSTEE
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Section 13.1
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Representations
and Warranties of Property Trustee
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60
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Section 13.2
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Representations
and Warranties of Delaware Trustee
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61
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ARTICLE XIV
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MISCELLANEOUS
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Section 14.1
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Notices
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62
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Section 14.2
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Governing
Law
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63
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Section 14.3
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Intention
of the Parties
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63
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Section 14.4
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Headings
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63
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Section 14.5
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Successors
and Assigns
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63
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Section 14.6
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Partial
Enforceability
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63
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Section 14.7
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Counterparts
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64
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ANNEX I
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Terms
of 6.0% Preferred Securities and 6.0% Common Securities
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I-1
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EXHIBIT A-1
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Form
of Preferred Security Certificate
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A1-1
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EXHIBIT A-2
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Form
of Common Security Certificate
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A2-1
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EXHIBIT B
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Form
of Transfer Certificate
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B-1
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EXHIBIT C
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Form
of Letter to be Delivered by Accredited Investors
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C-1
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EXHIBIT D
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Officer's
Certificate
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D-1
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AMENDED
AND RESTATED
TRUST
AGREEMENT
OF
SERVISFIRST
CAPITAL TRUST II
March
15, 2010
AMENDED AND RESTATED TRUST AGREEMENT
("Trust Agreement") dated and effective as of March 15, 2010, by the Trustees
(as defined herein), the Depositor (as defined herein) and by the Holders (as
defined herein), from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Trust Agreement;
WHEREAS, the Delaware Trustee and the
Depositor established ServisFirst Capital Trust II (the "Trust"), a statutory
trust created under the Delaware Statutory Trust Act pursuant to a Trust
Agreement dated as of February 9, 2010 (the "Original Agreement"), and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on February 9, 2010, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the Debenture
Issuer (each as hereinafter defined);
WHEREAS, prior to the date hereof, no
Trust Securities have been issued;
WHEREAS, all of the Trustees and the
Depositor, by this Trust Agreement, amend and restate each and every term and
provision of the Original Agreement; and
NOW, THEREFORE, it being the intention
of the parties hereto to continue the Trust as a statutory trust under the
Statutory Trust Act (as defined herein) and that this Trust Agreement constitute
the governing instrument of such statutory trust, the Trustees declare that all
assets contributed to the Trust will be held in trust for the benefit of the
Holders (as defined herein), from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Trust Agreement.
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
Section
1.1 Definitions.
Unless the context otherwise
requires:
(a) Capitalized
terms used in this Trust Agreement but not defined in the preamble above or
elsewhere herein have the respective meanings assigned to them in this Section
1.1;
(b) a
term defined anywhere in this Trust Agreement has the same meaning
throughout;
(c) all
references to "the Trust Agreement" or "this Trust Agreement" are to this Trust
Agreement (including Appendix I hereto and Exhibit A hereto) as modified,
supplemented or amended from time to time;
(d) all
references in this Trust Agreement to Articles and Sections and Annexes and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this Trust
Agreement unless otherwise specified;
(e) a
term defined in the Trust Indenture Act has the same meaning when used in this
Trust Agreement unless otherwise defined in this Trust Agreement or unless the
context otherwise requires;
(f) a
term defined in the Indenture (as defined herein) has the same meaning when used
in this Trust Agreement unless otherwise defined in this Trust Agreement or the
context otherwise requires; and
(g) a
reference to the singular includes the plural and vice versa.
"Accredited Investor" has the
meaning set forth in Rule 501(a) of Regulation D under the Securities
Act.
"Administrative Trustee" has
the meaning set forth in Section 5.1.
"Affiliate" has the same
meaning as given to that term in Rule 405 under the Securities Act or any
successor rule thereunder.
"Agent" means any Paying Agent
or Registrar.
"Authorized Officer" of a
Person means any other Person that is authorized to legally bind such former
Person.
"Book Entry Interest" means a
beneficial interest in a Global Certificate registered in the name of a Clearing
Agency or its nominee, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section
9.4.
"Business Day" means any day
other than a Saturday or a Sunday or a day on which banking institutions in The
City of New York or Wilmington, Delaware are authorized or required by law or
executive order to close.
"Clearing Agency" means an
organization registered as a "Clearing Agency" pursuant to Section 17A of the
Exchange Act that is acting as depositary for the Preferred Securities and in
whose name or in the name of a nominee of that organization shall be registered
a Global Certificate and which shall undertake to effect book entry transfers
and pledges of the Preferred Securities.
"Clearing Agency Participant"
means a broker, dealer, bank, other financial institution or other Person for
whom from time to time the Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Time" means March 15,
2010.
"Code" means the Internal
Revenue Code of 1986, as in effect from time to time, or any successor
legislation.
"Commission" means the United
States Securities and Exchange Commission as from time to time constituted, or
if any time after the execution of this Trust Agreement such Commission is not
existing and performing the duties now assigned to it under applicable Federal
securities laws, then the body performing such duties at such time.
"Common Securities" has the
meaning specified in Section 7.1(a).
"Company" means ServisFirst
Bancshares, Inc., a Delaware corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination.
"Company Common Stock" means
the common stock, par value $.001 per share, of the Company or any other class
of stock resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value.
"Company Indemnified Person"
means (a) any Administrative Trustee; (b) any Affiliate of any Administrative
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"Confidential Offering
Memorandum" has the meaning set forth in Section 3.6(b).
"Conversion Agent" means the
Debenture Trustee, in its capacity as Conversion Agent, or such other Conversion
Agent as may be appointed by the Company hereunder.
"Conversion Price" has the
meaning set forth in Section 5(c) of Annex I hereto.
"Conversion Stock" means one
or more shares of Company Common Stock issuable upon conversion of the Preferred
Securities or the Debentures.
"Corporate Trust Office" means
the office of the Property Trustee at which the corporate trust business of the
Property Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware
19890 Attention: Corporate Trust Administration.
"Covered Person" means: (a)
any officer, director, shareholder, partner, member, representative, employee or
agent of (i) the Trust or (ii) the Trust's Affiliates; and (b) any Holders of
Securities.
"Debenture Issuer" means
ServisFirst Bancshares, Inc., a Delaware corporation, or any successor entity
resulting from any consolidation, amalgamation, merger or other business
combination, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture Trustee" means
Wilmington Trust Company, a Delaware banking corporation, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures" means the 6.0%
Junior Subordinated Mandatory Convertible Deferrable Interest Debentures due
March 15, 2040 of the Debenture Issuer issued pursuant to the
Indenture.
"Default" means an event, act
or condition that with notice or lapse of time, or both, would constitute an
Event of Default.
"Definitive Preferred
Securities" has the meaning set forth in Section 7.3(b).
"Delaware Trustee" has the
meaning set forth in Section 5.2.
"Depositor" means ServisFirst
Bancshares, Inc., a Delaware corporation, or any successor entity resulting from
any merger, consolidation, amalgamation or other business combination, in its
capacity as sponsor of the Trust.
"Direct Action" has the
meaning set forth in Section 3.8(e).
"Distribution" means a
distribution payable to Holders of Securities in accordance with Section
6.1.
"Distribution Date" has the
meaning set forth in Section 6.1.
"DTC" means The Depository
Trust Company, the initial Clearing Agency.
"Event of Default" in respect
of the Securities means an Event of Default (as defined in the Indenture) that
has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the
Securities Exchange Act of 1934, as in effect from time to time, or any
successor legislation.
"Fiduciary Indemnified Person"
has the meaning set forth in Section 10.4(b).
"GAAP" means generally
accepted accounting principles, as recognized by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the Depositor and
its subsidiaries throughout the period indicated and consistent with the prior
financial practice of the Depositor and its subsidiaries.
"Global Preferred Securities"
has the meaning set forth in Section 7.3(b).
"Guarantor" means ServisFirst
Bancshares, Inc., a Delaware corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business combination in its
capacity as guarantor under the Preferred Securities Guaranty.
"Holder" means (i) a Person in
whose name a Security is registered, such Person being a beneficial owner within
the meaning of the Statutory Trust Act, and (ii) a Preferred Security Beneficial
Owner.
"Indemnified Person" means a
Company Indemnified Person or a Fiduciary Indemnified Person.
"Indenture" means the
Indenture dated as of March 15, 2010 among the Debenture Issuer and the
Debenture Trustee, as amended from time to time.
"Investment Company" means an
investment company as defined in the Investment Company Act.
"Investment Company Act" means
the Investment Company Act of 1940, as in effect from time to time, or any
successor legislation.
"Legal Action" has the meaning
set forth in Section 3.6(g).
"Liquidation Amount" with
respect to any Security means the amount designated as such with respect thereto
in Annex I hereto.
"Majority in Liquidation
Amount" means, with respect to the Trust Securities, except as provided
in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Trust Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate Liquidation Amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Mandatory Conversion Date"
means March 15, 2013.
"Ministerial Action" has the
meaning set forth in Annex I hereto.
"Officers' Certificate" means,
with respect to any Person, a certificate signed by two of the following: the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Secretary or the Treasurer of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a
statement that each officer signing the Certificate has read the covenant or
condition and the definitions relating thereto;
(b) a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Certificate;
(c) a
statement that each such officer has made such examination or investigation as,
in such officer's opinion, is necessary to enable such officer 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, in the opinion of each such officer, such condition or
covenant has been complied with.
"Opinion of Counsel" means a
written opinion of counsel, who may be an employee of the Depositor, and who
shall be acceptable to the Property Trustee.
"Paying Agent" has the meaning
specified in Section 7.4.
"Person" means a legal person,
including any individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Preferred Securities" has the
meaning specified in Section 7.1(a).
"Preferred Securities
Guaranty" means the guaranty agreement dated as of March 15, 2010 of the
Guarantor in respect of the Preferred Securities.
"Preferred Security Beneficial
Owner" means, with respect to a Book Entry Interest, a Person who is the
beneficial owner of such Book Entry Interest, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Property Trustee" has the
meaning set forth in Section 5.3(a).
"Property Trustee Account" has
the meaning set forth in Section 3.8(c).
"Qualified Institutional
Buyer" has the meaning set forth in Rule 144A under the Securities
Act.
"Quorum" means a majority of
the Administrative Trustees or, if there are only two Administrative Trustees,
both of them.
"Redemption Price" has the
meaning set forth in Section 4(a) of Annex I hereto.
"Registrar" has the meaning
set forth in Section 7.4.
"Related Party" means, with
respect to the Depositor, any direct or indirect wholly owned subsidiary of the
Depositor or any other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Depositor.
"Responsible Officer" means,
with respect to the Property Trustee, any officer assigned to the Trust and
Security Services Office of the Property Trustee, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers,
and having direct responsibility for the administration of this Trust Agreement
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5
under the Investment Company Act, or any successor rule or
regulation.
"Rule 144A" means Rule 144A
under the Securities Act, or any successor rule or regulation.
"Securities" or "Trust Securities" means the
Common Securities and the Preferred Securities.
"Securities Act" means the
Securities Act of 1933, as in effect from time to time, or any successor
legislation.
"Special Event" has the
meaning set forth in Section 4(c) of Annex I hereto.
"Statutory Trust Act" means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as in effect from
time to time, or any successor legislation.
"Successor Entity" has the
meaning specified in Section 3.15(b).
"Successor Delaware Trustee"
has the meaning specified in Section 5.7(b)(ii).
"Successor Property Trustee"
has the meaning specified in Section 5.7(b)(i).
"Successor Securities" has the
meaning specified in Section 3.15(b).
"Super Majority" has the
meaning set forth in Section 2.6(a)(ii).
"10% in Liquidation Amount"
means, with respect to the Trust Securities, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Trust Securities voting together as a single class or, as the context may
require, Holders of outstanding Preferred Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of 10%
or more of the aggregate Liquidation Amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Treasury Regulations" means
the income tax regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such regulations
are in effect from time to time (including corresponding provisions of
succeeding regulations).
"Trustee" or "Trustees" means each Person
who has signed this Trust Agreement as a trustee (including the Property
Trustee, the Delaware Trustee and the Administrative Trustees), so long as such
Person shall continue as a trustee of the Trust in accordance with the terms
hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof, and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means
the Trust Indenture Act of 1939, as in effect from time to time, or any
successor legislation.
ARTICLE
II
TRUST
INDENTURE ACT
Section
2.1 Trust Indenture Act;
Application.
(a) This
Trust Agreement is not subject to or governed by the Trust Indenture Act except
to the extent set forth herein as expressly agreed to by the parties to this
Trust Agreement.
(b) The
Property Trustee shall be the only Trustee that is a Trustee for the purposes of
construing this Trust Agreement in accordance with the Trust Indenture Act, as
applicable.
(c) The
application of the provisions of the Trust Indenture Act to this Trust Agreement
as set forth herein shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section
2.2 Lists of Holders of
Securities.
(a) Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide the Property Trustee, unless the Property Trustee is Registrar for the
Securities, (i) within 5 days after each record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date, provided that neither the Depositor nor the
Administrative Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the Depositor and
the Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of
Holders.
(b) The
Property Trustee shall comply with the obligations under Sections 311(a), 311(b)
and 312(b) of the Trust Indenture Act.
Section
2.3 Reports by the Property
Trustee.
(a) The
Property Trustee shall transmit to the Holders of the Preferred Securities such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Property Trustee shall, within sixty days
after each anniversary following the date of this Trust Agreement, commencing
March 15, 2011, deliver to the Holders of the Preferred Securities a brief
report, dated as of such date, which complies with the provisions of such
Section 313(a).
(b) A
copy of each such report shall, at the time of such transmission to the Holders
of the Preferred Securities, be filed by the Property Trustee with the
Company. The Company will promptly notify the Property Trustee in
writing if and when the Preferred Securities are listed on any stock
exchange.
Section
2.4 Periodic Reports to Property
Trustee.
(a) General. The
Depositor will furnish to the Property Trustee:
(i) unless
the Depositor is then filing comparable reports pursuant to the reporting
requirements of the Exchange Act, as soon as practicable and in any event within
45 days after the end of the first, second and third quarterly accounting
periods of each fiscal year (commencing with the quarter ending March 31, 2010),
the Depositor's unaudited consolidated balance sheet as of the last day of such
quarterly period and the related consolidated statements of income and cash
flows during such quarterly period prepared in accordance with GAAP and (in the
case of second and third quarterly periods) for the portion of the fiscal year
ending with the last day of such quarterly period, setting forth in each case in
comparative form corresponding unaudited figures from the preceding fiscal
year;
(ii) unless
the Depositor is then filing comparable reports pursuant to the reporting
requirements of the Exchange Act, as soon as practicable and in any event within
90 days after the end of each fiscal year (commencing with the fiscal year
ending December 31, 2009), the Depositor's consolidated balance sheet as of the
end of such year and the related consolidated statements of income, cash flows,
and shareholders' equity during such year setting forth in each case in
comparative form corresponding figures from the preceding fiscal year
accompanied by an audit report thereon of a firm of independent public
accountants registered with the Public Company Accounting Oversight Board (the
"PCAOB");
(iii) at
the time of the delivery of the report provided for in clause (ii) above (or at
the time of the filing of the comparable report pursuant to the Exchange Act),
an Officers' Certificate as set forth in Exhibit D to this
Trust Agreement to the effect that, to the best of such officers' knowledge, no
Default or Event of Default under this Trust Agreement has occurred and is
continuing or, if any Default or Event of Default hereunder has occurred and is
continuing, specifying the nature and extent thereof and what action the
Depositor is taking or proposes to take in response thereto;
(iv) the
Depositor and the Administrative Trustees shall file annually with the Property
Trustee a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Trust Agreement;
and
(v) promptly
after the Depositor obtains actual knowledge of the occurrence thereof, written
notice of the occurrence of any event or condition which constitutes an Event of
Default, and an Officers' Certificate of the Depositor specifically stating that
such Event of Default has occurred and setting forth the details thereof and the
action which the Depositor is taking or proposes to take with respect
thereto.
(b) All
such information provided to the Property Trustee as indicated above also will
be provided by the Property Trustee upon written request to the Property Trustee
(which may be a single continuing request), to (x) Holders and (y) prospective
purchasers of Preferred Securities (and of beneficial interests in Preferred
Securities). The Depositor will furnish to the Property Trustee, upon
its request, sufficient copies of all such information to accommodate the
requests of such Holders and prospective purchasers of Preferred Securities (and
of beneficial interests in Preferred Securities).
(c) Upon
the request of any Holder or the Property Trustee (on behalf of a Holder), the
Depositor will furnish such information as is specified in paragraph (d)(4) of
Rule 144A to Holders and prospective purchasers of Preferred Securities (and of
beneficial interests in Preferred Securities) who are Qualified Institutional
Buyers or Accredited Investors or to the Property Trustee for delivery to such
Holders or prospective purchasers of Preferred Securities (or of beneficial
interests in Preferred Securities) as the case may be, unless, at the time of
such request, the Depositor is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act.
Section
2.5 Evidence of Compliance with
Conditions Precedent.
(a) The
Depositor shall furnish to the Property Trustee evidence of compliance with the
conditions precedent, if any, provided for in the Trust Agreement (including any
covenants compliance with which constitutes a condition precedent) which relate
to the satisfaction and discharge of the Trust Agreement, or to any other action
to be taken by the Property Trustee at the request or upon the application of
such obligor. Such evidence shall consist of the
following:
(i) Certificates
or opinions made by officers of the Depositor who are specified in the Trust
Agreement, stating that such conditions precedent have been complied with;
and
(ii) An
opinion of counsel (who may be of counsel of the Depositor) stating that in his
opinion such conditions precedent have been complied with.
(b) Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in the Trust Agreement shall include (1) a statement
that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied
with.
Section
2.6 Events of Default;
Waiver.
(a) The
Holders of a Majority in Liquidation Amount of Preferred Securities may, by
vote, on behalf of the Holders of all of the Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is
not waivable under the Indenture, the Event of Default under the Trust Agreement
shall also not be waivable; or
(ii) requires
the consent or vote of greater than a majority in aggregate principal amount of
the holders of the Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Trust Agreement may only be waived by
the vote of the Holders of at least the proportion in aggregate Liquidation
Amount of the Preferred Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures outstanding.
Upon such
waiver, any such Default shall cease to exist, and any Event of Default with
respect to the Preferred Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other Default or an Event of Default with respect to
the Preferred Securities or impair any right consequent thereon. Any
waiver by the Holders of the Preferred Securities of an Event of Default with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Trust Agreement
without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The
Holders of a Majority in Liquidation Amount of the Common Securities may, by
vote, on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences,
provided that, if the
underlying Event of Default under the Indenture:
(i) is
not waivable under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Event of Default under the Trust
Agreement as provided below in this Section 2.6(b), the Event of Default under
the Trust Agreement shall also not be waivable; or
(ii) requires
the consent or vote of a Super Majority to be waived, except where the Holders
of the Common Securities are deemed to have waived such Event of Default under
the Trust Agreement as provided below in this Section 2.6(b), the Event of
Default under the Trust Agreement may only be waived by the vote of the Holders
of at least the proportion in aggregate Liquidation Amount of the Common
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, that each
Holder of Common Securities will be deemed to have waived any such Event of
Default and all Events of Default with respect to the Common Securities and its
consequences if all Events of Default with respect to the Preferred Securities
have been cured, waived or otherwise eliminated, and until such Events of
Default have been so cured, waived or otherwise eliminated, the Property Trustee
will be deemed to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have the right
to direct the Property Trustee in accordance with the terms of the
Securities. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such Default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other Default or Event of Default with respect
to the Common Securities or impair any right consequent thereon.
(c) A
waiver of an Event of Default under the Indenture by the Property Trustee, at
the written direction of the Holders of the Preferred Securities, constitutes a
waiver of the corresponding Event of Default under this Trust
Agreement.
Section
2.7 Event of Default;
Notice.
(a) The
Property Trustee shall, within 90 days after a Responsible Officer of the
Property Trustee obtains actual knowledge of the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all Defaults with respect to the Securities actually
known to a Responsible Officer of the Property Trustee, unless such Defaults
have been cured before the giving of such notice; provided that, except for a
Default in the payment of principal of (or premium, if any) or interest on any
of the Debentures, the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Property Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The
Property Trustee shall not be deemed to have actual knowledge of any Default or
Event of Default except:
(i) Default
or Event of Default under Sections 5.01(a) and 5.01(b) of the Indenture;
or
(ii) any
Default or Event of Default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property Trustee charged
with the administration of the Trust Agreement shall have actual
knowledge.
(c) Within
five Business Days after the occurrence of any Event of Default actually known
to the Property Trustee, the Property Trustee shall transmit notice of such
Event of Default to the Holders of the Preferred Securities, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived.
ARTICLE
III
ORGANIZATION
Section
3.1 Name.
The Trust is named "ServisFirst Capital
Trust II", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Property Trustee, the Delaware Trustee
and the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrative
Trustees.
Section
3.2 Office.
The address of the principal office of
the Trust is c/o ServisFirst Bancshares, Inc., 850 Shades Creek Parkway, Suite
200, Birmingham, Alabama 35209. On 10 Business Days written notice to
the Property Trustee, the Delaware Trustee and the Holders of Securities, the
Administrative Trustees may designate another principal office.
Section
3.3 Purpose.
The exclusive purposes and functions of
the Trust are (a) to issue and sell the Securities, (b) to use the gross
proceeds from the sale of the Securities to acquire the Debentures, and (c)
except as otherwise limited herein, to engage in only those other activities
necessary, advisable or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, mortgage
or pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section
3.4 Authority.
Subject to the limitations provided in
this Trust Agreement and to the specific duties of the Property Trustee, the
Administrative Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Administrative
Trustees in accordance with their powers shall constitute the act of and serve
to bind the Trust and an action taken by the Property Trustee on behalf of the
Trust in accordance with its powers shall constitute the act of and serve to
bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the Trustees
to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Trust Agreement.
Section
3.5 Title to Property of the
Trust.
Except as provided in Section 3.8 with
respect to the Debentures and the Property Trustee Account or as otherwise
provided in this Trust Agreement, legal title to all assets of the Trust shall
be vested in the Trust. The Holders shall not have legal title to any
part of the assets of the Trust, but shall have an undivided beneficial interest
in the assets of the Trust.
Section
3.6 Powers and Duties of the
Administrative Trustees.
The Administrative Trustees shall have
the exclusive power, duty and authority to cause the Trust to engage in the
following activities:
(a) to
issue and sell the Preferred Securities and the Common Securities in accordance
with this Trust Agreement; provided, however, that except, in the case of (i)
and (ii), as contemplated in Section 7.1(a), (i) the Trust may issue no more
than one series of Preferred Securities and no more than one series of Common
Securities, (ii) there shall be no interests in the Trust other than the
Securities, and (iii) the issuance of Securities shall be limited to a
simultaneous issuance of both Preferred Securities and Common Securities at any
Closing Time;
(b) in
connection with the issue and sale of the Preferred Securities, at the direction
of the Depositor, to:
(i) execute,
if necessary, a confidential offering memorandum (the "Confidential Offering
Memorandum") in preliminary and final form, including any amendments or
supplements thereto, prepared by the Depositor, in relation to the offering and
sale of Preferred Securities under an exemption from the registration
requirements of Section 5 of the Securities Act;
(ii) execute
and file any documents prepared by the Depositor, or take any acts as determined
by the Depositor to be necessary in order to qualify the offering and sale of
Preferred Securities under an exemption from the registration requirements of
Section 5 of the Securities Act;
(iii) execute
and file any documents prepared by the Depositor, or take any acts as determined
by the Depositor to be necessary in order to qualify or register all or part of
the Preferred Securities in any State in which the Depositor has determined to
qualify or register such Preferred Securities for sale; and
(iv)
execute and deliver letters, documents, or instruments with DTC and
other Clearing Agencies relating to the Preferred Securities.
(c) to
acquire the Debentures with the proceeds of the sale of the Preferred Securities
and the Common Securities; provided, however, that the Administrative Trustees
shall cause legal title to the Debentures to be held by the Property Trustee for
the benefit of the Holders of the Preferred Securities and the Holders of Common
Securities;
(d) to
give the Depositor and the Property Trustee prompt written notice of the
occurrence of a Special Event;
(e) to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to
take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of the Securities;
(g) to
bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or
otherwise adjust claims or demands of or against the Trust ("Legal Action"),
unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power
to bring such Legal Action;
(h) to
employ or otherwise engage employees and agents (who may be designated as
officers with titles) and managers, contractors, advisors, and consultants and
pay reasonable compensation for such services;
(i) to
incur expenses that are necessary or incidental to carry out any of the purposes
of the Trust;
(j) to
act as, or appoint another Person to act as, Registrar for the Securities or to
appoint a Paying Agent for the Securities as provided in Section 7.4 except for
such time as such power to appoint a Paying Agent is vested in the Property
Trustee;
(k) to
give prompt written notice to the Property Trustee and to Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(l) to
execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing;
(m) to
take all action that may be necessary or appropriate for the preservation and
the continuation of the Trust's valid existence, rights, franchises and
privileges as a statutory trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Preferred Securities or to enable the
Trust to effect the purposes for which the Trust was created;
(n) to
take any action, not inconsistent with this Trust Agreement or with applicable
law, that the Administrative Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing
the Trust not to be deemed to be an Investment Company required to be registered
under the Investment Company Act;
(ii) causing
the Trust to be classified for United States federal income tax purposes as a
grantor trust; and
(iii) cooperating
with the Debenture Issuer to ensure that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal income tax
purposes; and
(o) to
take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to
be duly prepared and filed by the Administrative Trustees, on behalf of the
Trust.
The Administrative Trustees must
exercise the powers set forth in this Section 3.6 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3, and the
Administrative Trustees shall not take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the
Administrative Trustees shall have none of the powers or the authority of the
Property Trustee set forth in Section 3.8.
Any expenses incurred by the
Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the
Depositor.
Section
3.7 Prohibition of Actions by the Trust
and the Trustees.
The Trust shall not, and the Trustees
(including the Property Trustee) shall not cause the Trust to, engage in any
activity other than as required or authorized by this Trust
Agreement. The Trust shall not:
(a) invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of Securities pursuant to the terms of
this Trust Agreement and of the Securities;
(b) acquire
any assets other than as expressly provided herein;
(c) possess
Trust property for other than a Trust purpose;
(d) make
any loans or incur any indebtedness other than loans represented by the
Debentures;
(e) possess
any power or otherwise act in such a way as to vary the Trust assets or the
terms of the Securities in any way whatsoever;
(f) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Securities; or
(g) other
than as provided in this Trust Agreement or Annex I, (A) direct the time, method
and place of conducting any proceeding with respect to any remedy available to
the Debenture Trustee, or exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (B) waive any past default
that is waivable under the Indenture, (C) exercise any right to rescind or annul
any declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required unless the
Trust shall have received an opinion of a nationally recognized independent tax
counsel experienced in such matters to the effect that such amendment,
modification or termination will not cause more than an insubstantial risk that,
for United States federal income tax purposes, the Trust will not be classified
as a grantor trust.
Section
3.8 Powers and Duties of the Property
Trustee.
(a) The
legal title to the Debentures shall be held by the Property Trustee in trust for
the benefit of the Holders of the Securities. The right, title and
interest of the Property Trustee to the Debentures shall vest automatically in
each Person who may hereafter be appointed as Property Trustee in accordance
with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Debentures
have been executed and delivered.
(b) The
Property Trustee shall not transfer its right, title and interest in the
Debentures to the Administrative Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The
Property Trustee shall:
(i) establish
and maintain a segregated non-interest bearing trust account (the "Property
Trustee Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the Property
Trustee, deposit such funds into the Property Trustee Account and make, or cause
any Paying Agent to make, payments to the Holders of the Preferred Securities
and Holders of the Common Securities from the Property Trustee Account in
accordance with Section 6.1. Funds in the Property Trustee Account
shall be held uninvested until disbursed in accordance with this Trust
Agreement;
(ii) engage
in such ministerial activities as shall be necessary or appropriate to effect
the redemption of the Preferred Securities and the Common Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon
written notice of distribution issued by the Administrative Trustees in
accordance with the terms of the Securities, engage in such ministerial
activities as shall be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence of certain
events.
(d) The
Property Trustee shall take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of this
Trust Agreement and the Securities.
(e) Subject
to Section 3.9(a), the Property Trustee shall take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Property Trustee has actual knowledge or the Property Trustee's duties
and obligations under this Trust Agreement and if the Property Trustee shall
have failed to take such Legal Action, the Holders of the Preferred Securities
may take such Legal Action, to the same extent as if such Holders of Preferred
Securities held an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of such Preferred Securities, without first
proceeding against the Property Trustee or the Trust; provided, however, that if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Debenture Issuer to pay the principal of or premium, if
any, or interest on the Debentures on the date such principal, premium, if any,
or interest is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate Liquidation Amount of the Preferred Securities of such Holder
(a "Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the
Holders of the Common Securities will be subrogated to the rights of such Holder
of Preferred Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Preferred Securities in such Direct
Action. Except as provided in the preceding sentences, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The
Property Trustee shall continue to serve as a Trustee until either:
(i) the
Trust has been completely liquidated and the proceeds of the liquidation
distributed to the Holders of Securities pursuant to the terms of the
Securities; or
(ii) a
Successor Property Trustee has been appointed and has accepted that appointment
in accordance with Section 5.7(b).
(g) The
Property Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of Debentures under the Indenture and, if an
Event of Default actually known to a Responsible Officer of the Property Trustee
occurs and is continuing, the Property Trustee shall, for the benefit of Holders
of the Securities, enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to this Trust Agreement and the terms of the
Securities. The Property Trustee must exercise the powers set forth
in this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property Trustee shall
not take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
(h) The
Property Trustee shall be authorized to undertake any actions set forth in
Section 317(a) of the Trust Indenture Act.
For such time as the Property Trustee
is the Paying Agent, the Property Trustee may authorize one or more Persons to
act as additional Paying Agents and to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with the provisions of Section 317(b) of the
Trust Indenture Act. Any such additional Paying Agent may be removed
by the Property Trustee at any time the Property Trustee remains as Paying Agent
and a successor Paying Agent or additional Paying Agents may be (but are not
required to be) appointed at any time by the Property Trustee.
(i) Subject
to this Section 3.8, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative Trustees set forth in
Section 3.6.
The Property Trustee must exercise the
powers set forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the Property
Trustee shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
Section
3.9 Certain Duties and Responsibilities
of the Property Trustee.
(a) The
Property Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement and in the Securities and no implied covenants shall be read
into this Trust Agreement against the Property Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement, 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 his or her own affairs.
(b) No
provision of this Trust Agreement shall be construed to relieve the Property
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct, except
that:
(i) prior
to the occurrence of an Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:
(A) the
duties and obligations of the Property Trustee shall be determined solely by the
express provisions of this Trust Agreement and in the Securities and the
Property Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Trust Agreement and in the
Securities, and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee; and
(B) in
the absence of bad faith on the part of the Property Trustee, the Property
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the requirements of this
Trust Agreement; provided, however, that in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Trust Agreement;
(ii) the
Property Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Property Trustee, unless it shall be
proved that the Property Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) the
Property 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 not less than a Majority in Liquidation Amount of the Securities relating to
the time, method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iv) no
provision of this Trust Agreement shall require the Property Trustee to expend
or risk its own funds or otherwise incur personal 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 the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Trust Agreement or indemnity satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the
Property Trustee's sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Property Trustee Account shall
be to deal with such property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement;
(vi) the
Property Trustee shall have no duty or liability for or with respect to the
value, genuineness, existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection therewith;
(vii) the
Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree in writing with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to
the extent otherwise required by law; and
(viii) the
Property Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable for any default or
misconduct of the Administrative Trustees, any other Trustees or the
Depositor.
Section
3.10 Certain Rights of Property
Trustee.
(a) Subject
to the provisions of Section 3.9:
(i) the
Property Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any
direction or act of the Depositor or the Administrative Trustees contemplated by
this Trust Agreement may be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever
in the administration of this Trust Agreement, the Property Trustee shall deem
it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon receipt
of such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(v)
the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(vi) the
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Property Trustee security
and indemnity, satisfactory to the Property Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Property
Trustee's agents, nominees or custodians) and liabilities that might be incurred
by it in complying with such request or direction, including such advances as
may be requested by the Property Trustee; provided, that, nothing contained in
this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Trust Agreement;
(vii) the
Property Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, custodians,
nominees or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) any
action taken by the Property Trustee or its agents hereunder shall bind the
Trust and the Holders of the Securities, and the signature of the Property
Trustee or its agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to the authority
of the Property Trustee to so act or as to its compliance with any of the terms
and provisions of this Trust Agreement, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such
action;
(x) whenever
in the administration of this Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Property Trustee (i) may request
instructions from the Holders of the Securities which instructions may only be
given by the Holders of the same proportion in Liquidation Amount of the
Securities as would be entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in conclusively
relying on or acting in or accordance with such instructions;
(xi) except
as otherwise expressly provided by this Trust Agreement, the Property Trustee
shall not be under any obligation to take any action that is discretionary under
the provisions of this Trust Agreement;
(xii) the
Property Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without gross negligence, and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(xiii) when
the Property Trustee incurs expenses or renders services in connection with an
Event of Default under Sections 5.01(d) or 5.01(e) of the Indenture, such
expenses (including the fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration under
any bankruptcy law or law relating to creditors rights generally;
(xiv) in
no event shall the Property Trustee be liable for the selection of investments
or for investment losses incurred thereon. The Property Trustee shall
have no liability in respect of losses incurred as a result of the liquidation
of any such investment prior to its stated maturity or the failure of the party
directing such investment to provide timely written investment
direction. The Property Trustee shall have no obligation to invest or
reinvest any amounts held hereunder in the absence of such written investment
direction; and
(xv) in
the event that the Property Trustee is also acting as Paying Agent, Registrar or
exchange agent hereunder, the rights and protections afforded to the Property
Trustee pursuant to this Article Three shall also be afforded to such Paying
Agent, Registrar or exchange agent.
(b) No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
Section
3.11 Delaware Trustee.
Notwithstanding any other provision of
this Trust Agreement other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Administrative Trustees or the Property
Trustee described in this Trust Agreement. Except as set forth in
Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Statutory Trust
Act and taking such actions as are required to be taken by the Delaware Trustee
under the Statutory Trust Act. In the event the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder,
the Delaware Trustee shall be entitled to the benefits of Section 3.9(b)(ii)
through (vii) and Section 3.10. No implied covenants or obligations
shall be read into this Trust Agreement against the Delaware
Trustee.
Section
3.12 Execution of
Documents.
Unless otherwise determined by the
Administrative Trustees, and except as otherwise required by the Statutory Trust
Act, any Administrative Trustee is authorized to execute on behalf of the Trust
any documents that the Administrative Trustees have the power and authority to
execute pursuant to Section 3.6.
Section
3.13 Not Responsible for Recitals or
Issuance of Securities.
The recitals contained in this Trust
Agreement and the Securities shall be taken as the statements of the Depositor,
and the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust
Agreement or the Securities.
Section
3.14 Duration of
Trust.
The Trust, unless terminated pursuant
to the provisions of Article VIII hereof, shall have existence up to March 15,
2041 (the "Expiration Date").
Section
3.15 Mergers.
(a) The
Trust may not merge or convert with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
(b) The
Trust may, at the request of the Depositor, with the consent of the
Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, merge or convert with
or into, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to, a trust organized as such under the laws of any State; provided
that:
(i) such
successor entity (the "Successor Entity") either:
(A) expressly
assumes all of the obligations of the Trust under the Securities;
or
(B) substitutes
for the Securities other securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the
Depositor expressly appoints a trustee of the Successor Entity that possesses
substantially the same powers and duties as the Property Trustee as the holder
of the Debentures;
(iii) the
Successor Securities are listed or quoted, or any Successor Securities will be
listed or quoted upon notification of issuance, on any national securities
exchange or with another organization on which the Preferred Securities are then
listed or quoted, if any;
(iv) such
merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such
merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of such
Holders' interests in the new entity);
(vi) such
Successor Entity has a purpose substantially identical to that of the
Trust;
(vii) prior
to such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an opinion of an
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such
merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of the Holders'
interest in the new entity);
(B) following
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor the Successor Entity will be required
to register as an Investment Company under the Investment Company Act;
and
(C) following
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer, or lease, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax purposes;
and
(viii) the
Depositor or any permitted successor or assignee owns all of the common
securities of such Successor Entity and guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent provided
by the Preferred Securities Guaranty.
(c) Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of all Holders of
the Securities in liquidation amount of the Securities, consolidate, amalgamate,
merge or convert with or into, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, any
other Person or permit any other Person to consolidate, amalgamate, merge or
convert with or into, or replace it if such consolidation, amalgamation, merger,
conversion, replacement, conveyance, transfer or lease would cause the Trust or
the Successor Entity not to be classified as a grantor trust for United States
federal income tax purposes.
(d) The
Administrative Trustees shall furnish to the Delaware Trustee at least five
Business Days prior notice of the consummation of any merger, consolidation,
amalgamation, or replacement; provided, however, that failure to provide such
notice shall not effect the validity of any such transaction.
ARTICLE
IV
SPONSOR
Section
4.1 Depositor's Purchase of Common
Securities.
At the Closing Time, the Depositor will
purchase all of the Common Securities then issued by the Trust at the same time
as the Preferred Securities are issued and sold.
Section
4.2 Responsibilities of the
Depositor.
In connection with the issue and sale
of the Preferred Securities, the Depositor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to
prepare the Confidential Offering Memorandum, including any amendments or
supplements thereto;
(b) to
do any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Depositor
deems necessary or advisable in order to comply with any exemption from the
registration requirements of Section 5 of the Securities Act; and
(c) to
determine the States in which to take appropriate action to qualify or register
for sale all or part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust, and advise the Trust
of actions it must take, and prepare for execution and filing any documents to
be executed and filed by the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States.
Section
4.3 Right to Proceed.
The Depositor acknowledges the rights
of the Holders of Preferred Securities, in the event that a failure of the Trust
to pay Distributions on the Preferred Securities is attributable to the failure
of the Company to pay interest or principal on the Debentures, to institute
Direct Actions against the Debenture Issuer for enforcement of its payment
obligations on the Debentures.
ARTICLE
V
TRUSTEES;
CONVERSION AGENT
Section
5.1 Number of Trustees: Appointment of
Co-Trustee.
The number of Trustees initially shall
be four, and:
(a) at
any time before the issuance of any Securities, the Depositor may, by written
instrument, increase or decrease the number of Trustees; and
(b) after
the issuance of any Securities, the number of Trustees may be increased or
decreased by vote of the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the Holders of the Common
Securities; provided, however, that, the
number of Trustees shall in no event be less than two; provided further, that (1) one
Trustee shall be the Delaware Trustee; (2) there shall be at least one Trustee
who is an employee or officer of, or is affiliated with the Depositor (an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee,
and such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements. Notwithstanding the above, unless an Event of Default
shall have occurred and be continuing, at any time or times, for the purpose of
meeting the requirements hereof or of any legal requirements of any jurisdiction
in which any part of the Trust's property may at the time be located, the
Holders of a Majority in Liquidation Amount of the Common Securities acting as a
class at a meeting of the Holders of the Common Securities, and the
Administrative Trustees shall have power to appoint one or more Persons either
to act as a co-trustee, jointly with the Property Trustee, of all or any part of
the Trust's property, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such person or persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of this Trust Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
Section
5.2 Delaware Trustee.
If required by the Statutory Trust Act,
one Trustee (the "Delaware Trustee") shall be:
(a) a
natural person who is a resident of the State of Delaware; or
(b) if
not a natural person, an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of applicable
law,
provided that, if the Property
Trustee has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application to
the Property Trustee in its capacity as Property Trustee.
Section
5.3 Property Trustee;
Eligibility.
(a) There
shall at all times be one Trustee (the "Property Trustee") which shall act as
Property Trustee and which shall:
(i)
not be an Affiliate
of the Depositor; and
(ii) be
a corporation or national banking association organized and doing business under
the laws of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the Commission
to act as an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least U.S. $50,000,000, and subject to supervision or
examination by federal, state, territorial or District of Columbia
authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then
for the purposes of this Section 5.3(a)(ii), the combined capital and surplus of
such corporation or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.
(b) If
at any time the Property Trustee shall cease to be eligible to so act under
Section 5.3(a), the Property Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.7(c).
(c) If
the Property Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holder of the Common Securities (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The
Preferred Securities Guaranty shall be deemed to be specifically described in
this Trust Agreement for purposes of clause (i) of the first provision contained
in Section 310(b) of the Trust Indenture Act.
(e) The
initial Property Trustee shall be:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust Administration
Section
5.4 Certain Qualifications of
Administrative Trustees and Delaware Trustee Generally.
Each Administrative Trustee and the
Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee)
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.
Section
5.5 Administrative
Trustees.
(a) The
initial Administrative Trustees shall be:
Thomas A.
Broughton III
c/o
ServisFirst Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
William
M. Foshee
c/o
ServisFirst Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
(b) Except
as expressly set forth in this Trust Agreement and except if a meeting of the
Administrative Trustees is called with respect to any matter over which the
Administrative Trustees have power to act, any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee.
(c) Unless
otherwise determined by the Administrative Trustees, and except as otherwise
required by the Statutory Trust Act or applicable law, any Administrative
Trustee is authorized to execute on behalf of the Trust any documents which the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6; and
(d) An
Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the
purposes of signing any documents which the Administrative Trustees have power
and authority to cause the Trust to execute pursuant to Section
3.6.
Section
5.6 Delaware Trustee.
The initial Delaware Trustee shall
be:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust Administration
Section
5.7 Appointment, Removal and Resignation
of Trustees.
(a) Subject
to Section 5.7(b), any Trustee may be appointed or removed without cause at any
time:
(i)
until the issuance of any Securities, by written instrument executed by
the Depositor;
(ii) in
the case of Administrative Trustees, after the issuance of any Securities, by
vote of the Holders of a Majority in Liquidation Amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities;
(iii) in
the case of the Property Trustee and the Delaware Trustee, unless an Event of
Default shall have occurred and be continuing after the issuance of any
Securities, by vote of the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the Holders of the Common
Securities; and
(iv) in
the case of the Property Trustee and the Delaware Trustee, if an Event of
Default shall have occurred and be continuing after the issuance of the
Securities, by vote of Holders of a Majority in Liquidation Amount of the
Preferred Securities voting as a class at a meeting of Holders of the Preferred
Securities.
(b) (i) The
Trustee that acts as Property Trustee shall not be removed in accordance with
Section 5.7(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3 (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the removed Property Trustee,
the Administrative Trustees and the Depositor; and
(ii) the
Trustee that acts as Delaware Trustee shall not be removed in accordance with
this Section 5.7(a) until a successor Trustee possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and delivered to the
removed Delaware Trustee, the Administrative Trustees and the
Depositor.
(c) A
Trustee appointed to office shall hold office until his successor shall have
been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Depositor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i)
No such resignation of the Trustee that acts as the Property Trustee shall
be effective:
(A) until
a Successor Property Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Property Trustee and
delivered to the Administrative Trustees, the Depositor and the resigning
Property Trustee; or
(B) until
the assets of the Trust have been completely liquidated and the proceeds thereof
distributed to the Holders of the Securities; and
(ii) no
such resignation of the Trustee that acts as the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Administrative Trustees, the Depositor and the resigning
Delaware Trustee.
(d) The
Holders of the Common Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(e) If
no Successor Property Trustee or Successor Delaware Trustee shall have been
appointed and accepted appointment as provided in this Section 5.7 within 60
days after delivery of an instrument of resignation or removal, the Property
Trustee or Delaware Trustee resigning or being removed, as applicable, may
petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(f) No
Property Trustee or Delaware Trustee shall be liable for the acts or omissions
of any Successor Property Trustee or Successor Delaware Trustee, as the case may
be.
Section
5.8 Vacancies Among
Trustees.
If a Trustee ceases to hold office for
any reason and the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall
occur. A resolution certifying the existence of such vacancy by the
Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees, shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in
accordance with Section 5.7.
Section
5.9 Effect of
Vacancies.
The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.7, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust
Agreement.
Section
5.10 Meetings.
If there is more than one
Administrative Trustee, meetings of the Administrative Trustees shall be held
from time to time upon the call of any Administrative
Trustee. Regular meetings of the Administrative Trustees may be held
at a time and place fixed by resolution of the Administrative
Trustees. Notice of any in-person meetings of the Administrative
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
such meeting. Notice of any telephonic meetings of the Administrative
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an
Administrative Trustee at a meeting shall constitute a waiver of notice of such
meeting except where an Administrative Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided
otherwise in this Trust Agreement, any action of the Administrative Trustees may
be taken at a meeting by vote of a majority of the Administrative Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
written consent of the Administrative Trustees. In the event there is
only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative
Trustee.
Section
5.11 Delegation of
Power.
(a) Any
Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section 3.6, including any
confidential offering memorandum or amendment thereto; and
(b) The
Administrative Trustees shall have power to delegate from time to time to such
of their number or to officers of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section
5.12 Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee that is not a
natural person, as the case may be, may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such Trustee, shall
be the successor of such Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
such Person shall be otherwise qualified and eligible under this
Article.
Section
5.13 Appointment of Conversion
Agent.
The
Conversion Agent shall convert the Preferred Securities in accordance with Annex
I hereto. The Administrative Trustees may revoke such power and remove the
Conversion Agent if such Trustees determine in their sole discretion that the
Conversion Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Conversion Agent shall initially be the
Debenture Trustee, and any co-paying agent chosen by the Debenture Trustee, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Conversion Agent shall be permitted to resign as Conversion Agent upon
30 days' written notice to the Administrative Trustees, the Property
Trustee and the Depositor. In the event that the Debenture Trustee shall no
longer be the Conversion Agent or a successor Conversion Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
conversion Agent (which shall be a bank or trust company). The provisions of
Sections 3.6 through 3.15 and Article X of this Trust Agreement shall apply
to any Conversion Agent appointed hereunder, mutatis mutandis, and any
Conversion Agent shall be bound by the requirements with respect to conversion
agents of securities issued pursuant to the Trust Indenture Act. Any reference
in this Trust Agreement to the Conversion Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE
VI
DISTRIBUTIONS
Section
6.1 Distributions.
Each Holder shall receive Distributions
in accordance with the applicable terms of such Holder's
Securities. If and to the extent that the Debenture Issuer makes a
payment of interest (including Compounded Interest (as defined in the Indenture)
and Additional Sums (as defined in the Indenture)), premium and/or principal or
any other payments on the Debentures held by the Property Trustee (the amount of
any such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders in accordance
with the respective terms of the Securities held by them (each date on which
distributions are payable in accordance with this Section 6.1, a "Distribution
Date").
ARTICLE
VII
ISSUANCE
OF SECURITIES
Section
7.1 General Provisions Regarding
Securities.
(a) The
Administrative Trustees shall on behalf of the Trust issue one class of
Preferred Securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I (the "Preferred
Securities") and one class of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities. The initial minimum
amount of the Preferred Securities that may be purchased by a Holder in the
initial offering is $20,000 and integral multiples of $5,000 in excess
thereof. Thereafter, Preferred Securities may be issued in multiples
of $5,000.
(b) The
Preferred Securities rank pari
passu and payment thereon shall be made Pro Rata (as defined in Annex I hereto) with
the Common Securities except that, where an Event of Default has occurred and is
continuing, the rights of Holders of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Preferred
Securities.
(c) The
consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute a
loan to the Trust.
(d) Upon
issuance of the Securities as provided in this Trust Agreement, the Securities
so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every
Person, by virtue of having become a Holder in accordance with the terms of this
Trust Agreement, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Trust Agreement.
Section
7.2 Execution and
Authentication.
The Securities shall be signed on
behalf of the Trust by an Administrative Trustee. Such signature may
be by manual or facsimile signature. Typographical and other minor
errors or defects in any reproduction of any such signature shall not affect the
validity of any Security. In case any Administrative Trustee who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such Persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of the Trust Agreement any
such Person was not such an Administrative Trustee.
A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property
Trustee. A Preferred Security shall not be valid until authenticated
by the manual signature of an authorized officer of the Property
Trustee. The signature shall be conclusive evidence that the
Preferred Security has been authenticated under this Trust
Agreement.
Upon a written order of the Trust
signed by one Administrative Trustee, the Property Trustee shall authenticate
the Preferred Securities for original issue. The aggregate number of Preferred
Securities outstanding at any time shall not exceed the number set forth in the
Terms in Annex I hereto except as provided in Section 7.6. All
Securities shall be dated the date of their authentication.
The Property Trustee may appoint an
authenticating agent acceptable to the Trust to authenticate Preferred
Securities. An authenticating agent may authenticate Preferred Securities
whenever the Property Trustee may do so. Each reference in this Trust
Agreement to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Depositor or an Affiliate.
Section
7.3 Form and Dating.
(a) General.
(i) The
Preferred Securities will initially be sold only to Qualified Institutional
Buyers in reliance on Rule 144A under the Securities Act and to Accredited
Investors in reliance on Rule 506 of Regulation D under the Securities
Act. The Preferred Securities may thereafter be transferred to, among
others, Qualified Institutional Buyers and Accredited Investors in each case,
subject to the restrictions on transfer set forth herein.
(ii) The
Preferred Securities and the Property Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 and the Common Securities
shall be substantially in the form of Exhibit A-2, each of which is hereby
incorporated in and expressly made a part of this Trust
Agreement. Certificates representing the Securities may be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by their execution
thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange rule, agreements to which the Trust
is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Administration Trustees, as evidenced
by their execution thereof). The Trust at the direction of the
Depositor shall furnish any such legend not contained in Exhibit A-1 to the
Property Trustee in writing. Each Preferred Security shall be dated
the date of its authentication. The terms and provisions of the
Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Trust Agreement and to the
extent applicable, the Property Trustee and the Depositor, by their execution
and delivery of this Trust Agreement, expressly agree to such terms and
provisions and to be bound thereby.
(b) Definitive Preferred
Securities. All Preferred Securities shall initially be issued
in the form of one or more certificates in fully registered form without
Distribution coupons with the appropriate legends set forth in Exhibit A-1
hereto, which Definitive Preferred Securities shall be delivered to the
purchasers thereof and registered in the name of such purchasers, duly executed
by the Trust and authenticated by the Property Trustee as provided
herein.
(c) Global Preferred
Securities. The Preferred Securities offered and sold to
Qualified Institutional Buyers may, but will not initially be, issued in the
form of one or more permanent global certificates in definitive, fully
registered form without Distribution coupons with the appropriate global legends
set forth in Exhibit A-1 hereto (a "Global Preferred Security"), which, if and
when so issued, shall be deposited on behalf of the purchasers of the Preferred
Securities represented thereby with the Property Trustee or the Registrar, as
custodian for the Clearing Agency, and registered in the name of the Clearing
Agency or a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The
number of Preferred Securities represented by the Global Preferred Security may
from time to time be increased or decreased by adjustments made on the records
of the Property Trustee and the Clearing Agency or its nominee as hereinafter
provided. Except as provided in Section 7.9, Preferred Security Beneficial
Owners will not be entitled to receive physical delivery of certificated
Preferred Securities (sometimes referred to herein as the "Definitive Preferred
Securities").
(d) Book-Entry
Provisions. In the event any Preferred Security is issued as a Global
Preferred Security, the Administrative Trustees shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing Agency's written instructions or
held by the Property Trustee or the Registrar as custodian for the Clearing
Agency.
Members of, or participants in, the
Clearing Agency ("Participants") shall have no rights under this Trust Agreement
with respect to any Global Preferred Security held on their behalf by the
Clearing Agency or by the Property Trustee or the Registrar as the custodian of
the Clearing Agency or under such Global Preferred Security, and the Clearing
Agency may be treated by the Trust, the Property Trustee and any agent of the
Trust or the Property Trustee as the absolute owner of such Global Preferred
Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Trust, the Property Trustee or any agent of the
Trust or the Property Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Clearing Agency or impair, as
between the Clearing Agency and its Participants, the operation of customary
practices of such Clearing Agency governing the exercise of the rights of a
holder of a beneficial interest in any Global Preferred
Security.
Section
7.4 Registrar and Paying
Agent.
The Trust shall maintain in Wilmington,
Delaware, (i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Preferred
Securities and of their transfer. The Trust may appoint the Registrar
and the Paying Agent and may appoint one or more co-registrars, one or more
additional paying agents in such other locations as it shall
determine. The term "Registrar" includes any additional registrar and
the term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent, Registrar or co-registrar without prior
notice to any Holder. The Paying Agent shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Property Trustee and the
Depositor. The Trust shall notify the Property Trustee in writing of
the name and address of any Agent not a party to this Trust
Agreement. If the Trust fails to appoint or maintain another entity
as Registrar or Paying Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent or
Registrar. The Property Trustee shall act as Paying Agent and Registrar for the
Common Securities.
The Trust initially appoints the
Property Trustee as Registrar and Paying Agent for the Preferred
Securities.
Section
7.5 Paying Agent to Hold Money in
Trust.
The Trust shall require each Paying
Agent other than the Property Trustee to agree in writing that the Paying Agent
will hold in trust for the benefit of Holders or the Property Trustee all money
held by the Paying Agent for the payment of Liquidation Amounts or Distributions
on the Securities, and will notify the Property Trustee in writing if there are
insufficient funds for such purpose. While any such insufficiency
continues, the Property Trustee may require a Paying Agent to pay all money held
by it to the Property Trustee. The Trust at any time may require a
Paying Agent to pay all money held by it to the Property Trustee and to account
for any money disbursed by it. Upon payment over to the Property
Trustee the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the
Depositor or an Affiliate of the Trust or the Depositor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
Section
7.6 Replacement
Securities.
If the Holder of a Security claims that
the Security has been lost, destroyed or wrongfully taken or if such Security is
mutilated and is surrendered to the Trust or in the case of the Preferred
Securities to the Property Trustee, the Administrative Trustees shall execute
and the Property Trustee shall authenticate a replacement Security if the
Property Trustee's and the Administrative Trustees' requirements, as the case
may be, are met. An indemnity bond must be provided by the Holder
which, in the judgment of the Property Trustee, is sufficient to protect the
Trustees, the Depositor or any authenticating agent from any loss which any of
them may suffer if a Security is replaced. The Trust may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an
additional beneficial interest in the Trust.
Section
7.7 Outstanding Preferred
Securities.
The Preferred Securities outstanding at
any time are all the Preferred Securities authenticated by the Property Trustee
except for those cancelled by it, those delivered to it for cancellation, and
those described in this Section as not outstanding.
If a Preferred Security is replaced,
paid or purchased pursuant to Section 7.6 hereof, it ceases to be outstanding
unless the Property Trustee receives proof satisfactory to it that the replaced,
paid or purchased Preferred Security is held by a bona fide
purchaser.
If Preferred Securities are considered
paid in accordance with the terms of this Trust Agreement, they cease to be
outstanding and Distributions on them shall cease to accumulate.
Except as otherwise provided herein, a
Preferred Security does not cease to be outstanding because one of the Trustees,
the Depositor or an Affiliate of the Depositor holds the Security.
Section
7.8 Preferred Securities in
Treasury.
In determining whether the Holders of
the required amount of Securities have concurred in any direction, waiver or
consent, Preferred Securities owned by the Trust, the Depositor or an Affiliate
of the Depositor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Preferred Securities which a Responsible Officer of the Property
Trustee actually knows are so owned shall be so disregarded.
Section
7.9 Temporary
Securities.
(a) Until
definitive Securities are ready for delivery, the Trust may prepare and, in the
case of the Preferred Securities, the Property Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in
the form of definitive Securities but may have variations that the Trust
considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Preferred Securities, the
Property Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
(b) A
Global Preferred Security deposited with the Clearing Agency or with the
Property Trustee as custodian for the Clearing Agency pursuant to Section 7.3
shall be transferred to a Preferred Security Beneficial Owner thereof in the
form of Definitive Preferred Securities only if such transfer complies with
Section 9.2 and (i) the Clearing Agency notifies the Company that it is
unwilling or unable to continue as Clearing Agency for such Global Preferred
Security or if at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act and a clearing agency is not appointed by the
Depositor within 90 days of such notice, (ii) a Default or an Event of Default
has occurred and is continuing or (iii) the Trust at its sole discretion elects
to cause the issuance of Definitive Preferred Securities.
(c) Any
Global Preferred Security that is transferable to the Preferred Security
Beneficial Owners in the form of Definitive Preferred Securities pursuant to
this Section 7.9 shall be surrendered by the Clearing Agency to the Property
Trustee located in Wilmington, Delaware, to be so transferred, in whole or from
time to time in part, without charge, and the Property Trustee shall
authenticate and make available for delivery, upon such transfer of each portion
of such Global Preferred Security, an equal aggregate Liquidation Amount of
Securities of authorized denominations in the form of Definitive Preferred
Securities. Any portion of a Global Preferred Security transferred
pursuant to this Section shall be registered in such names as the Clearing
Agency shall direct.
(d) Subject
to the provisions of Section 7.9(c), the Holder of a Global Preferred Security
may grant proxies and otherwise authorize any Person, including Participants and
Persons that may hold interests through Participants, to take any action which
such Holder is entitled to take under this Trust Agreement or the
Securities.
(e) In
the event of the occurrence of any of the events specified in Section 7.9(b),
the Trust will promptly make available to the Property Trustee a reasonable
supply of Definitive Preferred Securities in fully registered form without
Distribution coupons.
Section
7.10 Cancellation.
The Trust at any time may deliver
Preferred Securities to the Property Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Property Trustee any Preferred
Securities surrendered to them for registration of transfer, redemption,
exchange or payment. The Property Trustee shall promptly cancel all
Preferred Securities surrendered for registration of transfer, redemption,
exchange, payment, replacement or cancellation and shall dispose of canceled
Preferred Securities in accordance with its customary procedures unless any
Administrative Trustee otherwise directs the Property Trustee in
writing. The Trust may not issue new Preferred Securities to replace
Preferred Securities that it has paid or that have been delivered to the
Property Trustee for cancellation or that any Holder has exchanged.
Section
7.11 CUSIP Numbers.
The Trust in issuing the Preferred
Securities may use "CUSIP" numbers (if then generally in use), and, if so,
the Property Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders of Preferred Securities; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Preferred Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Preferred Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Depositor will promptly notify the Property Trustee of
any change in the CUSIP numbers.
ARTICLE
VIII
TERMINATION
OF TRUST
Section
8.1 Termination of
Trust.
(a) The
Trust shall automatically be terminated and dissolved and its affairs wound up
upon the earliest to occur of the following events:
(i)
upon the bankruptcy of the Depositor;
(ii) upon
the filing of a certificate of dissolution or liquidation or its equivalent with
respect to the Depositor, or the revocation of the Depositor's charter and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iii) following
the distribution of a Like Amount of the Debentures to the Holders of the
Securities, provided that, the Property Trustee has received written notice and
an Officer's Certificate from the Depositor directing the Property Trustee to
terminate the Trust (which direction is optional and within the discretion of
the Depositor);
(iv) upon
the entry of a decree of judicial dissolution of the Trust by a court of
competent jurisdiction;
(v) when
all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities;
(vi) when
the Property Trustee shall have delivered the Debentures (or such portion
thereof as shall then be issued and outstanding) to the Conversion Agent for
conversion into the Conversion Stock on the Mandatory Conversion Date;
or
(vii)
the expiration of the term of the Trust provided in Section 3.14.
(b) As
soon as is practicable after the occurrence of an event referred to in Section
8.1(a) and the completion of the winding up of the Trust and after satisfaction
of all liabilities of the Trust (whether by payment or by making reasonable
provision for payment thereof), the Administrative Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The
provisions of Section 3.9 and Article X shall survive the termination of the
Trust.
Section
8.2 Liquidation.
(a) If
an event specified in clause (i), (iii) or (iv) of Section 8.1 occurs, or upon
the Expiration Date, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like Amount of Debentures, subject to Section
8.2(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 90
days prior to the date upon which the Trust is liquidated (the "Liquidation
Date") to each Holder of Trust Securities at such Holder's address appearing in
the Securities Register. All notices of liquidation
shall:
(i)
state the Liquidation Date;
(ii) state
that from and after the Liquidation Date the Trust Securities will no longer be
deemed to be Outstanding and any Preferred Securities certificates and/or Common
Securities certificates not surrendered for exchange will be deemed to represent
a Like Amount of Debentures; and
(iii) provide
such information with respect to the mechanics by which Holders may exchange
Preferred Securities certificates and/or Common Securities certificates for
Debentures, or if Section 8.2(d) applies receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee shall deem
appropriate.
(b) Except
where Section 8.1(a)(v) or 8.2(d) applies, in order to effect the liquidation of
the Trust and distribution of the Debentures to Securityholders, the Property
Trustee, either itself acting as exchange agent or through the appointment of a
separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Preferred Securities certificates and/or the Outstanding Common
Securities certificates.
(c) Except
where Section 8.1(a)(v) or 8.2(d) applies, after the Liquidation Date, (i) the
Trust Securities will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to holders of Preferred
Securities certificates and/or Common Securities certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the Depositor shall use its best efforts to have the Debentures listed on
the New York Stock Exchange or on such other exchange, interdealer quotation
system or self-regulator organization as the Preferred Securities are then
listed, if any, (iv) any Preferred Securities certificates and/or Common
Securities certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures, from the last Distribution Date on which a Distribution
was made on such Preferred Securities certificates and/or Common Securities
certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Preferred Securities certificates and/or Common Securities
certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Preferred Securities
certificates and/or Common Securities certificates.
(d) In
the event that, notwithstanding the other provisions of this Section 8.2,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the property
of the Trust shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event on the date of the dissolution, winding-up
or other termination of the Trust, Securityholders will be entitled to receive
out of the assets of the Trust available for distribution to Securityholders,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The holder of
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities. Any such determination
and liquidation by the Property Trustee shall be conclusive upon the
Securityholders and the Property Trustee shall have no liability in connection
therewith.
ARTICLE
IX
TRANSFER
OF INTERESTS
Section
9.1 Transfer of
Securities.
(a) Securities
may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement and in the terms of the
Securities. Any transfer or purported transfer of any Security not
made in accordance with this Trust Agreement shall be null and
void.
(b) Subject
to this Article IX, Preferred Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Trust
Agreement and in the terms of the Preferred Securities, and upon submission by
the transferor of a duly executed Transfer Certificate, in the form attached
hereto as Exhibit B and, upon transfer to an Accredited Investor, a letter in
the form of Exhibit C hereto. If a Holder that is a Qualified Institutional
Buyer has an interest in a Global Preferred Security and wishes to transfer its
interest therein to an Accredited Investor that is not a Qualified Institutional
Buyer, such Accredited Investor transferee must take delivery of such interest
in the form of an interest in a Definitive Preferred Security, and the Property
Trustee shall effect the transfer in accordance with the procedures set forth in
this Article IX and shall make the appropriate adjustment on its books and
records and on the Preferred Security Ownership Interest Table set forth as
Schedule A to the Global Preferred Security. If an Accredited
Investor or Qualified Institutional Buyer who is the holder of a Definitive
Preferred Security wishes to transfer their interest therein to a Qualified
Institutional Buyer, and such Qualified Institutional Buyer wishes to take
delivery of such interest in the form of a Global Preferred Security and the
Administrative Trustees approve in writing the delivery as a Global Preferred
Security, the Property Trustee shall effect the transfer in accordance with the
procedures set forth in this Article IX, and shall make the appropriate
adjustment on its books and records and on the Preferred Security Ownership
Interest Table set forth as Schedule A to the Global Preferred
Security.
(c) Subject
to Section 3.15, the Depositor and any Related Party may only transfer the
Common Securities to the Depositor or a Related Party after the delivery to the
Property Trustee of an Officers' Certificate certifying that the transferee is
either the Depositor or a Related Party.
(d) The
Property Trustee shall provide for the registration of Securities and of the
transfer of Securities, which will be effected without charge but only upon
payment (with such indemnity as the Property Trustee may require) in respect of
any tax or other governmental charges that may be imposed in relation to
it. Upon surrender for registration of transfer of any Securities,
the Administrative Trustees shall execute and the Property Trustee shall cause
one or more new Securities to be issued in the name of the designated transferee
or transferees. Every Security surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be delivered to the Property
Trustee and canceled in accordance with Section 7.10. A transferee of
a Security shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a
Security. By acceptance of a Security, each transferee shall be
deemed to have agreed to be bound by this Trust Agreement.
Section
9.2 Transfer Procedures and
Restrictions.
(a) Transfer and Exchange of
Definitive Preferred Securities. When Definitive Preferred
Securities are presented to the Registrar or co-Registrar:
(i)
to register the
transfer of such Definitive Preferred Securities, or
(ii) to
exchange such Definitive Preferred Securities which became mutilated, destroyed,
defaced, stolen or lost, for an equal number of Definitive Preferred
Securities,
the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Preferred Securities surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Restrictions on Transfer of
a Definitive Preferred Security for a Beneficial Interest in a Global Preferred
Security. A Definitive Preferred Security may not be exchanged
for a beneficial interest in a Global Preferred Security except upon
satisfaction of the requirements set forth below and written approval thereof by
the Administrative Trustees. Upon receipt by the Property Trustee of
a Definitive Preferred Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Property Trustee, together
with written instructions directing the Property Trustee to make, or to direct
the Clearing Agency to make, an adjustment on its books and records with respect
to the appropriate Global Preferred Security to reflect an increase in the
number of the Preferred Securities represented by such Global Preferred Security
and further receipt of written approval thereof by the Administrative Trustees,
then the Property Trustee shall cancel such Definitive Preferred Security and
cause, or direct the Clearing Agency to cause, the aggregate number of Preferred
Securities represented by the appropriate Global Preferred Security to be
increased accordingly. If no Global Preferred Securities are then outstanding,
the Trust shall issue and the Property Trustee shall authenticate, upon written
order of any Administrative Trustee, an appropriate number of Preferred
Securities in global form.
(c) Transfer and Exchange of
Global Preferred Securities. Subject to Section 9.2(d), the
transfer and exchange of Global Preferred Securities or beneficial interests
therein shall be effected through the Clearing Agency, in accordance with this
Trust Agreement (including applicable restrictions on transfer set forth herein,
if any) and the procedures of the Clearing Agency therefor.
(d) Transfer of a Beneficial
Interest in a Global Preferred Security for a Definitive Preferred
Security.
(i) Any
Person having a beneficial interest in a Global Preferred Security may upon
request, but only upon 20 days' prior notice to the Property Trustee, and if
accompanied by the information specified below, exchange such beneficial
interest for a Definitive Preferred Security representing the same number of
Preferred Securities. Upon receipt by the Property Trustee from the
Clearing Agency, or its nominee on behalf of any Person having a beneficial
interest in a Global Preferred Security, of written instructions or such other
form of instructions as is customary for the Clearing Agency, or the Person
designated by the Clearing Agency as having such a beneficial interest in a
Preferred Security, and a certification from the transferor (in a form
substantially similar to that attached hereto as the "Form of Assignment" in
Exhibit A-1), which may be submitted by facsimile, then the Property Trustee
will cause the aggregate number of Preferred Securities represented by Global
Preferred Securities to be reduced on its books and records and, following such
reduction, the Trust will execute and the Property Trustee will authenticate and
make available for delivery to the transferee a Definitive Preferred
Security;
(ii) Definitive
Preferred Securities issued in exchange for a beneficial interest in a Global
Preferred Security pursuant to this Section 9.2(d) shall be registered in such
names and in such authorized denominations as the Clearing Agency, pursuant to
instructions from its Participants or indirect participants or otherwise, shall
instruct the Property Trustee in writing. The Property Trustee shall
deliver such Preferred Securities to the Persons in whose names such Preferred
Securities are so registered in accordance with such instructions of the
Clearing Agency.
(e) Restrictions on Transfer and
Exchange of Global Preferred Securities. Notwithstanding any
other provisions of this Trust Agreement (other than the provisions set forth in
subsection (g) of this Section 9.2), a Global Preferred Security may not be
transferred as a whole except by the Clearing Agency to a nominee of the
Clearing Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee of such
successor Clearing Agency.
(f) Authentication of Definitive
Preferred Securities. If at any time Global Preferred Securities are
outstanding:
(i)
there occurs a Default or
an Event of Default which is continuing,
(ii) the
Depositor, in its sole discretion, notifies the Property Trustee in writing that
it elects to cause the issuance of Definitive Preferred Securities under this
Trust Agreement, or
(iii) the
Trust is required to exchange such Global Preferred Securities for Definitive
Preferred Securities as described in Section 7.9(b),
then the
Trust will execute, and the Property Trustee, upon receipt of a written order of
the Trust signed by one Administrative Trustee requesting the authentication and
delivery of Definitive Preferred Securities to the Persons designated by the
Trust, will authenticate and make available for delivery Definitive Preferred
Securities, equal in number to the number of Preferred Securities represented by
the Global Preferred Securities, in exchange for such Global Preferred
Securities.
(g) Cancellation or Adjustment
of Global Preferred Security. At such time as all beneficial
interests in a Global Preferred Security have either been exchanged for
Definitive Preferred Securities to the extent permitted by this Trust Agreement
or redeemed, repurchased or canceled in accordance with the terms of this Trust
Agreement, such Global Preferred Security shall be canceled by the Property
Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Preferred Security is exchanged for Definitive Preferred
Securities, Preferred Securities represented by such Global Preferred Security
shall be reduced and an adjustment shall be made on the books and records of the
Property Trustee (if it is then the custodian for such Global Preferred
Security) with respect to such Global Preferred Security, by the Property
Trustee or the Securities custodian, to reflect such reduction.
(h) Obligations with Respect to
Transfers and Exchanges of Preferred Securities.
(i)
To permit
registrations of transfers and exchanges, the Trust shall execute and the
Property Trustee shall authenticate Definitive Preferred Securities and Global
Preferred Securities at the Registrar's or co-Registrar's request in accordance
with the terms of this Trust Agreement.
(ii) Registrations
of transfers or exchanges will be effected without charge, but only upon payment
(with such indemnity as the Trust, the Property Trustee or the Depositor may
require) in respect of any tax or other governmental charge that may be imposed
in relation to it.
(iii) The
Registrar or co-registrar shall not be required to register the transfer of or
exchange (a) Preferred Securities during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption or any
notice of selection of Preferred Securities for redemption and ending at the
close of business on the day of such mailing; or (b) any Preferred Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Preferred Security being redeemed in part.
(iv) Prior
to the due presentation for registrations of transfer of any Preferred Security,
the Trust, the Property Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Preferred Security is
registered as the absolute owner of such Preferred Security for the purpose of
receiving Distributions on such Preferred Security and for all other purposes
whatsoever, and none of the Trust, the Property Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) All
Preferred Securities issued upon any registration of transfer or exchange
pursuant to the terms of this Trust Agreement shall evidence the same security
and shall be entitled to the same benefits under this Trust Agreement as the
Preferred Securities surrendered upon such registration of transfer or
exchange.
(i) No Obligation of the
Property Trustee.
(i)
The Property
Trustee shall have no responsibility or obligation to any Preferred Security
Beneficial Owner, a Participant in the Clearing Agency or other Person with
respect to the accuracy of the records of the Clearing Agency or its nominee or
of any Participant thereof, with respect to any ownership interest in the
Preferred Securities or with respect to the delivery to any Participant,
Preferred Security Beneficial Owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Preferred Securities. All
notices and communications to be given to the Holders and all payments to be
made to Holders under the Preferred Securities shall be given or made only to or
upon the order of the registered Holders (which shall be the Clearing Agency or
its nominee in the case of a Global Preferred Security). The rights
of Preferred Security Beneficial Owners shall be exercised only through the
Clearing Agency subject to the applicable rules and procedures of the Clearing
Agency. The Property Trustee may conclusively rely and shall be fully
protected in relying upon information furnished by the Clearing Agency or any
agent thereof with respect to its Participants and any Preferred Security
Beneficial Owners.
(ii) The
Property Trustee and Registrar shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Trust Agreement or under applicable law with respect to any transfer
of any interest in any Preferred Security (including any transfers between or
among Clearing Agency Participants or Preferred Security Beneficial Owners)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Trust Agreement, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section
9.3 Deemed Security
Holders.
The Trustees may treat the Person in
whose name any Security shall be registered on the books and records of the
Property Trustee as the sole owner of such Security for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Security on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
Section
9.4 Restriction on
Transfers.
The Securities may not be transferred
unless (i) the Property Trustee receives an Opinion of Counsel satisfactory to
the Property Trustee stating that such transfer is exempt from registration
under applicable state and federal securities laws, will not cause the Trust to
be an "Investment Company" or under the "control" of an "Investment Company"
within the meaning of the Investment Company Act of 1940, as amended, and
otherwise complies with the restrictions on transfer contained in this Trust
Agreement, (ii) the transferee certifies to the Property Trustee that it is not
(x) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (y) a plan described in Section
4975(e)(1) of the Code or (z) any entity whose underlying assets include plan
assets by reason of a plan's investment in the Trust (each a "Benefit Plan") and
(iii) the Property Trustee receives the duly completed documents as required by
Section 9.1(b) hereof. By accepting and holding a Security the
transferee thereof shall be deemed to have represented and warranted that it is
not a Benefit Plan. The Property Trustee shall have no obligation to
determine whether or not a transferee of a Security is or is not a Benefit
Plan.
Section
9.5 Book Entry
Interests.
Global Preferred Securities, if any,
shall initially be registered on the books and records of the Trust in the name
of Cede & Co., the nominee of the Clearing Agency, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security certificate (a
"Preferred Security Certificate") representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until definitive, fully
registered Preferred Securities certificates have been issued to the Preferred
Security Beneficial Owners pursuant to Section 9.2:
(a) the
provisions of this Section 9.5 shall be in full force and effect;
(b) the
Trust and the Property Trustee and the Administrative Trustees shall be entitled
to deal with the Clearing Agency for all purposes of this Trust Agreement
(including the payment of Distributions on the Global Preferred Securities and
receiving approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall have no
obligation to the Preferred Security Beneficial Owners;
(c) to
the extent that the provisions of this Section 9.5 conflict with any other
provisions of this Trust Agreement, the provisions of this Section 9.5 shall
control; and
(d) the
rights of the Preferred Security Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Preferred Security Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants and receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing
Agency Participants.
Section
9.6 Notices to Clearing
Agency.
Whenever a notice or other
communication to the Preferred Security Holders is required under this Trust
Agreement, the Trustees shall give all such notices and communications specified
herein to be given to the Holders of Global Preferred Security to the Clearing
Agency, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
Section
9.7 Appointment of Successor Clearing
Agency.
If any Clearing Agency elects to
discontinue its services as securities depositary with respect to the Preferred
Securities, the Administrative Trustees may, in their sole discretion, appoint a
successor Clearing Agency with respect to such Preferred
Securities.
ARTICLE
X
LIMITATION
OF LIABILITY OF
HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
Section
10.1 Liability.
(a) Except
as expressly set forth in this Trust Agreement, the Preferred Securities
Guaranty and the terms of the Securities, the Depositor shall not
be:
(i)
personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which
shall be made solely from assets of the Trust; and
(ii) be
required to pay to the Trust or to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) The
Depositor shall be liable for all of the fees, expenses, debts and obligations
of the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant
to Section 3803(a) of the Statutory Trust Act, the Holders of the Preferred
Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
Section
10.2 Exculpation.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section
10.3 Fiduciary Duty.
(a) To
the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
any other Covered Person, an Indemnified Person acting under this Trust
Agreement shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified
Person.
(b) Unless
otherwise expressly provided herein:
(i)
whenever a conflict of interest exists or arises between any Covered
Persons; or
(ii) whenever
this Trust Agreement or any other agreement contemplated herein or therein
provides that an Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder of
Securities,
each
Covered Person or Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence
of bad faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of
this Trust Agreement or any other agreement contemplated herein or of any duty
or obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever
in this Trust Agreement an Indemnified Person is permitted or required to make a
decision:
(i)
in its "discretion" or under
a grant of similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including its own interests,
and shall have no duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in
its "good
faith" or under another express standard, the Indemnified Person shall
act under such express standard and shall not be subject to any other or
different standard imposed by this Trust Agreement or by applicable
law.
Section
10.4 Indemnification.
(a) (i)
The Depositor shall indemnify, to the full extent permitted by law, any Company
Indemnified Person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Trust, and with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The
Depositor shall indemnify, to the full extent permitted by law, any Company
Indemnified Person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact that he is or was
a Company Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such Person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
(iii) To
the extent that a Company Indemnified Person shall be successful on the merits
or otherwise (including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter therein, he shall
be indemnified, to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(iv) Any
indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless
ordered by a court) shall be made by the Depositor only as authorized in the
specific case upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Administrative
Trustees by a majority vote of a quorum consisting of such Administrative
Trustees who were not parties to such action, suit or proceeding, (2) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses
(including attorneys' fees and expenses) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and (ii) of this Section
10.4(a) shall be paid by the Depositor in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Depositor as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Depositor if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority vote of a quorum
of disinterested Administrative Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion or (iii)
the Common Security Holder of the Trust, that, based upon the facts known to the
Administrative Trustees, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad faith or in
a manner that such Person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in
instances where the Administrative Trustees, independent legal counsel or Common
Security Holder reasonably determine that such Person deliberately breached his
duty to the Trust or its Common or Preferred Security Holders.
(vi) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of
any other rights to which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of stockholders or
disinterested directors of the Depositor or Preferred Security Holders of the
Trust or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Depositor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(vii) The
Depositor or the Trust may purchase and maintain insurance on behalf of any
Person who is or was a Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Depositor would have the power to indemnify
him against such liability under the provisions of this Section
10.4(a).
(viii) For
purposes of this Section 10.4(a), references to "the Trust" shall include, in
addition to the resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 10.4(a)
with respect to the resulting or surviving entity as he would have with respect
to such constituent entity if its separate existence had continued.
(ix) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 10.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a Person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors and administrators
of such a Person.
(b) The
Depositor agrees to indemnify the (i) Property Trustee, (ii) the Delaware
Trustee, (iii) any Affiliate of the Property Trustee or the Delaware Trustee,
and (iv) any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee or the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set
forth in this Section 10.4(b) shall survive the resignation or removal of the
Property Trustee or the Delaware Trustee and the satisfaction and discharge of
this Trust Agreement.
(c) The
Depositor agrees to pay the Property Trustee and the Delaware Trustee, from time
to time, such compensation for all services rendered by the Property Trustee and
the Delaware Trustee hereunder including reasonable compensation expenses and
disbursements as of its agents and counsel as may be mutually agreed upon in
writing by the Depositor and the Property Trustee or the Delaware Trustee, as
the case may be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Trust Agreement, except any such expense,
disbursement or advance as may be attributable to its or their gross negligence
or bad faith. No Depositor may claim any liens or charge on any Trust
Property as a result of any amount due pursuant to this Section
10.4.
Section
10.5 Outside
Businesses.
Any Covered Person, the Depositor, the
Delaware Trustee and the Property Trustee may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Securities shall have no rights by virtue of this Trust Agreement
in and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Depositor, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Depositor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered
Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depositary for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
ARTICLE
XI
ACCOUNTING
Section
11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the
Code.
Section
11.2 Certain Accounting
Matters.
(a) At
all times during the existence of the Trust, the Administrative Trustees shall
keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method
of accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books
of account and the records of the Trust shall be examined by and reported upon
as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants registered with the PCAOB selected by the
Administrative Trustees.
(b) The
Administrative Trustees shall cause to be prepared and delivered to each of the
Holders of Securities, within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The
Administrative Trustees shall cause to be duly prepared and delivered to each of
the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such information statements within 30 days after the end
of each Fiscal Year of the Trust.
(d) The
Administrative Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the
Administrative Trustees on behalf of the Trust with any state or local taxing
authority.
Section
11.3 Banking.
The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee Account and no
other funds of the Trust shall be deposited in the Property Trustee
Account. The sole signatories for such accounts shall be designated
by the Administrative Trustees; provided, however, that the Property Trustee
shall designate the signatories for the Property Trustee Account.
Section
11.4 Withholding.
The Trust and the Administrative
Trustees shall comply with all withholding requirements under United States
federal, state and local law. The Trust shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each Holder, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required
to withhold and pay over any amounts to any authority with respect to
Distributions or allocations to any Holder, the amount withheld shall be deemed
to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall
be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE
XII
AMENDMENTS
AND MEETINGS
Section
12.1 Amendments.
(a) Except
as otherwise provided in this Trust Agreement or by any applicable terms of the
Securities, this Trust Agreement may only be amended by a written instrument
approved and executed by:
(i) the
Administrative Trustees (or if there are more than two Administrative Trustees a
majority of the Administrative Trustees);
(ii) if
the amendment affects the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee; and
(iii) if
the amendment affects the rights, powers, duties, obligations or immunities of
the Delaware Trustee, the Delaware Trustee.
(b) No
amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless,
in the case of any proposed amendment, the Property Trustee shall have first
received an Officers' Certificate from each of the Trust and the Depositor that
such amendment is permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Securities);
(ii) unless,
in the case of any proposed amendment which affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee shall
have first received:
(A) an
Officers' Certificate from each of the Trust and the Depositor that such
amendment is permitted by, and conforms to, the terms of this Trust Agreement
(including the terms of the Securities); and
(B) an
opinion of counsel (who may be counsel to the Depositor or the Trust) that (x)
such amendment is permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Securities) and (y) all conditions
precedent to the execution and delivery of such amendment have been
satisfied,
provided, however, that the
Property Trustee shall not be required to sign any such amendment,
and
(iii) to
the extent the result of such amendment would be to:
(A) cause
the Trust to fail to continue to be classified for purposes of United States
federal income taxation as a grantor trust;
(B) reduce
or otherwise adversely affect the powers of the Property Trustee in
contravention of the Trust Indenture Act; or
(C) cause
the Trust to be deemed to be an Investment Company required to be registered
under the Investment Company Act;
(c) At
such time after the Trust has issued any Securities that remain outstanding, any
amendment that would adversely affect the rights, privileges or preferences of
any Holder of Securities may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Section
10.1(c) and this Section 12.1 shall not be amended without the consent of all of
the Holders of the Securities;
(e) Article
IV shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities;
(f) The
rights of the Holders of the Common Securities under Article V to increase or
decrease the number of, and appoint and remove Trustees shall not be amended
without the consent of the Holders of a Majority in Liquidation Amount of the
Common Securities; and
(g) Notwithstanding
Section 12.1(c), this Trust Agreement may be amended without the consent of the
Holders of the Securities to:
(i) cure
any ambiguity, correct or supplement any provision in this Trust Agreement that
may be inconsistent with any other provision of this Trust Agreement or to make
any other provisions with respect to matters or questions arising under this
Trust Agreement which shall not be inconsistent with the other provisions of the
Trust Agreement; and
(ii) to
modify, eliminate or add to any provisions of the Trust Agreement to such extent
as shall be necessary to (A) ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust at all times that any
Securities are outstanding, (B) to ensure that the Trust will not be required to
register as an Investment Company under the Investment Company Act, or (C) to
ensure that the proceeds from the sale of the Securities will constitute "Tier 1
capital" under capital adequacy requirements which may be applicable to the
Depositor;
provided, however, that in the
case of clause (i), such action shall not adversely affect in any material
respect the interests of the Holders of the Securities, and any amendments of
this Trust Agreement shall become effective when notice thereof is given to the
Holders of the Securities.
Section
12.2 Meetings of the Holders of
Securities; Action by Written Consent.
(a) Meetings
of the Holders of any class of Securities may be called at any time by the
Administrative Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Trust Agreement, the terms of the
Securities or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except
to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of Securities:
(i) notice
of any such meeting shall be given to all the Holders of Securities having a
right to vote thereat at least seven days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this Trust Agreement or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in
writing. The Administrative Trustees may specify that any written
ballot submitted to the Security Holder for the purpose of taking any action
without a meeting shall be returned to the Trust within the time specified by
the Administrative Trustees;
(ii) each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Holder of Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and the
Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each
meeting of the Holders of the Securities shall be conducted by the
Administrative Trustees or by such other Person that the Administrative Trustees
may designate; and
(iv) unless
the Statutory Trust Act, this Trust Agreement, the terms of the Securities, the
Trust Indenture Act or the listing rules of any stock exchange on which the
Preferred Securities are then listed or trading, otherwise provides, the
Administrative Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including notice of
the time, place or purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE
XIII
REPRESENTATIONS
OF PROPERTY TRUSTEE
AND
DELAWARE TRUSTEE
Section
13.1 Representations and Warranties of
Property Trustee.
The Trustee that acts as initial
Property Trustee represents and warrants to the Trust and to the Depositor at
the date of this Trust Agreement, and each Successor Property Trustee represents
and warrants to the Trust and the Depositor at the time of the Successor
Property Trustee's acceptance of its appointment as Property Trustee
that:
(a) The
Property Trustee is a Delaware banking corporation with trust powers and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Trust Agreement;
(b) The
execution, delivery and performance by the Property Trustee of this Trust
Agreement has been duly authorized by the Property Trustee. This
Trust Agreement has been duly executed and delivered by the Property Trustee and
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
and
(c) The
execution, delivery and performance of this Trust Agreement by the Property
Trustee does not conflict with or constitute a breach of the charter or by-laws
of the Property Trustee.
Section
13.2 Representations and Warranties of
Delaware Trustee.
The Trustee that acts as initial
Delaware Trustee represents and warrants to the Trust and to the Depositor at
the date of this Trust Agreement, and each Successor Delaware Trustee represents
and warrants to the Trust and the Depositor at the time of the Successor
Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
(a) The
Delaware Trustee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, or is a national banking
association, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Trust
Agreement;
(b) The
execution, delivery and performance by the Delaware Trustee of this Trust
Agreement has been duly authorized by all necessary corporate action on the part
of the Delaware Trustee and does not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee. This Trust Agreement has
been duly executed and delivered by the Delaware Trustee and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) No
consent, approval or authorization of, or registration with or notice to, any
federal or Delaware banking authority is required for the execution, delivery or
performance by the Delaware Trustee of this Trust Agreement; and
(d) The
Delaware Trustee is a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE
XIV
MISCELLANEOUS
Section
14.1 Notices.
All notices provided for in this Trust
Agreement shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) if
given to the Trust, in care of the Administrative Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
ServisFirst
Capital Trust II
c/o
ServisFirst Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
Attention:
Thomas A. Broughton III
Telecopy: (205)
949-0303
(b) if
given to the Delaware Trustee, at the mailing address set forth below (or such
other address as Delaware Trustee may give notice of to the Holders of the
Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention: Corporate
Trust Administration
Telecopy: (302)
636-4145
(c) if
given to the Property Trustee, at the Property Trustee's mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders of the Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention: Corporate
Trust Administration
Telecopy: (302)
636-4145
(d) if
given to the Holder of the Common Securities, at the mailing address of the
Depositor set forth below (or such other address as the Holder of the Common
Securities may give notice to the Trust):
ServisFirst
Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
Attention: Thomas
A. Broughton III
Telecopy: (205)
949-0303
(e) if
given to any other Holder, at the address set forth on the books and records of
the Registrar.
All such notices shall be deemed to
have been given when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to
deliver.
Section
14.2 Governing Law.
This Trust Agreement and the rights of
the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
Section
14.3 Intention of the
Parties.
It is the intention of the parties
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Trust Agreement
shall be interpreted to further this intention of the parties.
Section
14.4 Headings.
Headings contained in this Trust
Agreement are inserted for convenience of reference only and do not affect the
interpretation of this Trust Agreement or any provision hereof.
Section
14.5 Successors and
Assigns.
Whenever in this Trust Agreement any of
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included, and all covenants and agreements in this
Trust Agreement by the Depositor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so
expressed.
Section
14.6 Partial
Enforceability.
If any provision of this Trust
Agreement, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Trust Agreement, or the application
of such provision to Persons or circumstances other than those to which it is
held invalid, shall not be affected thereby.
Section
14.7 Counterparts.
This Trust Agreement may contain more
than one counterpart of the signature page and this Trust Agreement may be
executed by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
[Signatures
on Following Page]
IN WITNESS WHEREOF, the undersigned has
caused these presents to be executed as of the day and year first above
written.
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/s/ Thomas A. Broughton
III
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Thomas
A. Broughton III, solely in his capacity as
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Administrative
Trustee
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/s/ William M.
Foshee
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William
M. Foshee, solely in his capacity as
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Administrative
Trustee
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WILMINGTON
TRUST COMPANY, not in its
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individual
capacity but solely in its capacity as
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Delaware
Trustee
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By:
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/s/ Christopher J.
Slaybaugh
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Authorized
Officer
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WILMINGTON
TRUST COMPANY, not in its
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individual
capacity but solely in its capacity as
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Property
Trustee
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By:
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/s/ Christopher J.
Slaybaugh
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Authorized
Officer
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SERVISFIRST
BANCSHARES, INC.,
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as
Depositor
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By:
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/s/ Thomas A. Broughton
III
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Name: Thomas
A. Broughton III
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Title: President
and Chief Executive Officer
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ANNEX
I
TERMS
OF THE
6.0%
PREFERRED SECURITIES AND
6.0%
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended
and Restated Trust Agreement, dated as of March 15, 2010 (as amended from time
to time, the "Trust Agreement"), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities and the Common Securities (collectively, the "Securities") are set
out below (each capitalized term used but not defined herein has the meaning set
forth in the Trust Agreement or, if not defined in such Trust Agreement, as
defined in the Indenture):
1. Designation and
Number.
(a) Preferred
Securities. Up to 15,000 Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
$15,000,000 and each with a liquidation amount with respect to the assets of the
Trust of $1,000 per security (the "Preferred Liquidation Amount"), are hereby
designated for the purposes of identification only as "6.0% Preferred
Securities" (the "Preferred Securities"). The certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Trust Agreement, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice or to conform to the
rules of any stock exchange or quotation system on which the Preferred
Securities are listed or quoted. The initial minimum amount of the
Preferred Securities that may be purchased by a Holder in the initial offering
is $20,000 and integral multiples of $5,000 in excess
thereof. Thereafter, Preferred Securities may be issued in multiples
of $5,000.
(b) Common
Securities. Up to 50,000 Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
$50,000 and a liquidation amount with respect to the assets of the Trust of $1
per security (the "Common Liquidation Amount" and, together with the Preferred
Liquidation Amount, the "Liquidation Amount"), are hereby designated for the
purposes of identification only as "6.0% Common Securities" (the "Common
Securities"). The certificates evidencing the Common Securities shall
be substantially in the form of Exhibit A-2 to the
Trust Agreement, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
2. Distributions.
(a) During
the Interest Period, distributions payable on each Security will be fixed at a
rate per annum of 6.0% (the "Coupon Rate") of the Liquidation
Amount. The "Interest Period" means the period commencing on March
15, 2010 and ending on March 15, 2040. Distributions in arrears for
more than one quarterly period will bear additional distributions thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions", as used herein, includes
distributions of any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
(b) Distributions
on the Securities will be cumulative, will accumulate from the most recent date
to which Distributions have been paid or, if no Distributions have been paid,
from March 15, 2010, and will be payable quarterly in arrears on June 15,
September 15, December 15 and March 15 of each year, commencing on June 15,
2010, except as otherwise described below. The amount of
Distributions payable for any period will be computed on the basis of the actual
number of days elapsed over a 360-day year of twelve 30-day
months. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable on
such date shall be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), with the
same force and effect as if made on such date (each date on which Distributions
are payable in accordance with the foregoing, each a "Distribution Date,"
correspond to the interest payment dates on the Debentures). As long
as no Event of Default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period at any time and from time to time on
the Debentures for a period not exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such period (each an "Extension
Period"), provided that no Extension Period shall extend beyond the stated
maturity date of the Debentures (the "Stated Maturity"). Upon any
such election, Distributions will be deferred during such Extension
Period. Notwithstanding such deferral, Distributions to which Holders
of Securities are entitled shall continue to accumulate with additional
Distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the Debentures)
at the Coupon Rate compounded quarterly from the relevant Distribution Date,
during any such Extension Period. Prior to the expiration of any such
Extension Period, the Debenture Issuer may further defer payments of interest by
further extending such Extension Period; provided that such Extension Period,
together with all such previous and further extensions within such Extension
Period, may not exceed 20 consecutive quarterly periods, including the first
quarterly period during such Extension Period, or extend beyond the Stated
Maturity of the Debentures. Upon the expiration of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(c) Distributions
on the Securities will be payable to the Holders thereof as they appear on the
books and records of the Registrar at the close of business on the 15th day
(whether or not a Business Day) next preceding the relevant Distribution
Date. Subject to any applicable laws and regulations and the
provisions of the Trust Agreement, each such payment in respect of the Preferred
Securities will be made as follows: (i) if the Preferred Securities are held in
global form by a Clearing Agency (or its nominee), in accordance with the
procedures of the Clearing Agency; and (ii) if the Preferred Securities are held
in definitive form by check mailed or wired to the address of the Holder thereof
as reflected in the records of the Registrar unless otherwise agreed by the
Trust. The relevant record dates for the Common Securities shall be the same as
the record dates for the Preferred Securities. Distributions payable on any
Securities that are not punctually paid on any Distribution Date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Holder on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture.
(d)
In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) pursuant to Section 8
among the Holders of the Securities.
3.
Liquidation
Distribution upon Dissolution.
In the event of any termination of the
Trust or the Depositor otherwise gives notice of its election to liquidate the
Trust pursuant to Section 8.1(a)(iii) of the Trust Agreement, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the Debentures,
unless such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of the
Securities plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution").
"Like Amount" means (i) with respect to
a redemption of the Securities, Securities having a Liquidation Amount equal to
the principal amount of Debentures to be paid in accordance with their terms and
(ii) with respect to a distribution of Debentures upon the liquidation of the
Trust, Debentures having a principal amount equal to the Liquidation Amount of
the Securities of the Holder to whom such Debentures are
distributed.
If, upon any such liquidation, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets on hand legally available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis as set forth in Section
8.
4.
Redemption
and Distribution.
(a) Upon
the repayment of the Debentures on the Stated Maturity thereof or prepayment
thereof prior thereto in accordance with the terms thereof, the proceeds from
such repayment or prepayment shall be simultaneously applied by the Property
Trustee (subject to the Property Trustee having received notice no later than 45
days prior to such repayment or prepayment) to redeem a Like Amount of the
Securities at a redemption price equal to 100% of the Liquidation Amount of the
Securities, plus accumulated and unpaid Distributions thereon, if any, to the
date of such redemption (the "Redemption Price"). Holders will be
given not less than 30 nor more than 60 days' notice of such
redemption.
(b) [Reserved.]
(c) If
at any time a Capital Event, a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") occurs, the Debenture Issuer shall
have the right (subject to the conditions set forth in the Indenture), upon not
less than 30 nor more than 60 days' notice, to the Property Trustee to prepay
the Debentures in whole, but not in part, within the 90 days following the
occurrence of such Special Event (the "90 Day Period"), and, simultaneous with
such redemption, to cause a Like Amount of the Securities to be redeemed by the
Trust at the Redemption Price on a Pro Rata basis.
"Capital Event" means the receipt by
the Company and the Trust of an opinion of Haskell Slaughter Young &
Rediker, LLC, or any other independent bank regulatory counsel experienced in
such matters, to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Deposit Insurance Corporation, the Board of Governors of the Federal
Reserve System or any other federal bank regulatory agency or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date the Subordinated
Debentures are issued by the Company to the Trust pursuant to the Indenture (the
"Issue Date"), (i) the Company is or within 90 days will be subject to capital
adequacy requirements and such requirements do not or will not permit the
Preferred Securities to constitute, subject to limitations on inclusion of the
Preferred Securities as Tier 1 capital imposed by Federal Reserve capital
guidelines in effect and applicable to the Company as of the date of the
Confidential Offering Memorandum, Tier 1 capital (or its then-equivalent) or
(ii) the amount of net proceeds received from the sale of the Preferred
Securities and contributed by the Company to ServisFirst Capital Trust II does
not or within 90 days will not constitute Tier 1 (core) capital (or its
then-equivalent).
"Tax Event" means the receipt by the
Depositor and the Trust of an Opinion of Counsel, requested by the Depositor, (a
"Tax Event Opinion") experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative written decision or pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is made on or after the Issue Date,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days following the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Debenture Issuer on the Debentures is not, or
within 90 days following the date of such opinion, will not be, deductible by
the Debenture Issuer, in whole or in part, for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days following the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Investment Company Event" means the
receipt by the Depositor and the Trust of an opinion, requested by
the Depositor of counsel experienced in practice under the Investment Company
Act, to the effect that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in Investment Company Act Law"), there is more than an insubstantial
risk that the Trust is or will be considered an "investment company" which is
required to be registered under the Investment Company Act, which Change in
Investment Company Act Law becomes effective on or after the Issue
Date.
(d)
On and from the date fixed by the Administrative
Trustees for any distribution of Debentures and liquidation of the Trust: (i)
the Securities will no longer be deemed to be outstanding, (ii) the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee), as the
Holder of the Preferred Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon such
distribution and (iii) any certificates representing Securities not held by the
Clearing Agency or its nominee (or any successor Clearing Agency or its nominee)
will be deemed to represent beneficial interests in a Like Amount of Debentures
until such certificates are presented to the Administrative Trustees or their
agent for cancellation, whereupon the Debenture Issuer will issue to such
holder, and the Debenture Trustee will authenticate, a certificate representing
such Debentures.
(e) The
procedure with respect to redemptions of Securities, or distributions of
Debentures in exchange therefor, shall be as follows:
(i) If
less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected on a pro rata basis (as determined in accordance with
paragraph 8 below), or by such other method as the Property Trustee deems fair
and appropriate, not more than 60 days prior to the date of redemption by the
Property Trustee from the outstanding Securities not previously called for
redemption or, if the Preferred Securities are then held in the form of a Global
Preferred Security, in accordance with the customary procedures for the Clearing
Agency.
(ii) Notice
of any redemption of, or notice of distribution of Debentures in exchange for,
the Securities (a "Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for repayment
or prepayment of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(e)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the books and records of the Registrar. No defect
in the Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(iii) If
Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, (which notice will be irrevocable), then (A) with respect to Preferred
Securities registered in the name of or held of record by a Clearing Agency or
its nominee, by 12:00 noon, New York City time, on the redemption date, and
Debentures have been presented provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the related
maturity or prepayment of the Debentures by 10:00 a.m., New York City time, on
the Stated Maturity or the date of prepayment, as the case may be, the Property
Trustee will deposit irrevocably with the Clearing Agency or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to such Preferred Securities and will give the
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the relevant Clearing Agency Participants, and (B) with respect to
Preferred Securities issued in certificated form and Common Securities, provided
that the Debenture Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related maturity or prepayment of the Debentures,
the Property Trustee will pay the relevant Redemption Price to the Holders of
such Securities by check mailed or wired to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption
date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required and Debentures have been presented, if applicable,
then immediately prior to the close of business on the date of such deposit, or
on the redemption date, as applicable, Distributions will cease to accumulate on
the Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
of such Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment
of accumulated and unpaid Distributions on the Redemption Date of the Securities
will be subject to the rights of Holders of Securities on the close of business
on a regular record date in respect of a Distribution Date occurring on or prior
to such Redemption Date.
(v) Neither
the Administrative Trustees nor the Trust shall be required to register or cause
to be registered the transfer of (i) any Securities beginning on the opening of
business 15 days before the day of mailing of a notice of redemption or any
notice of selection of Securities for redemption or (ii) any Securities selected
for redemption. If any date fixed for redemption of Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Property Trustee or the Paying Agent or by
the Depositor as guarantor pursuant to the Preferred Securities Guaranty,
Distributions on such Securities will continue to accumulate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(vi) Redemption/Distribution
Notices shall be sent by the Property Trustee on behalf of the Trust to (A) in
respect of the Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security Certificates have been issued, to
the Holder thereof, and (B) in respect of the Common Securities to the Holder
thereof.
(vii) Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws and banking laws), the Depositor or any of its
Affiliates may at any time and from time to time purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
5.
Mandatory and Optional
Conversion.
(a)
(i) To
the extent not previously redeemed or converted into shares of Conversion Stock
pursuant to Section 5(b) below, all Preferred Securities will automatically and
mandatorily convert into shares of Company Common Stock on the Mandatory
Conversion Date at the Conversion Price (as defined in Section 5(c)
below).
(ii)
In order to effect such mandatory conversion, upon
delivery of the Preferred Securities then issued and outstanding to the Trustee
by the Conversion Agent on the Mandatory Conversion Date, the Trust will
terminate and the Property Trustee, on behalf of the Trust, will deliver all of
the Debentures then issued and outstanding to the Conversion Agent on the
Mandatory Conversion Date. The Conversion Agent shall cause the
Debenture Trustee to convert the Debentures into Company Common Stock at the
Conversion Price. The Conversion Agent shall thereupon distribute
such Conversion Stock to the Holders of record of the Preferred Securities pro
rata in accordance with the liquidation value of the Preferred Securities owned
by each respective Holder of record as of the 15th day
prior to the Mandatory Conversion Date (which shall be the record date with
respect to the Mandatory Conversion Date), together with any accrued but unpaid
Distributions through and including the Mandatory Conversion Date subject to any
necessary regulatory approvals.
(b)
(i) Any
Holder of Preferred Securities may elect, at any time prior to (but not
including) a Redemption Date or the Mandatory Conversion Date, to convert such
Preferred Securities (in whole or in part) for conversion into shares of Company
Common Stock at the Conversion Price; provided, however, that a Holder of
Preferred Securities surrendering less than all Preferred Securities held by
such Holder for conversion must surrender such Preferred Securities in
increments of $5,000 in liquidation amount of Preferred Securities or any
integral multiple thereof.
(ii)
A Holder desiring to effect such a voluntary conversion must
submit to the Conversion Agent an irrevocable request to convert Preferred
Securities on behalf of such Holder (a "Conversion Request"), together with (if
the Preferred Securities are held in certificated form) the certificate(s)
representing the Preferred Securities to be converted. The Conversion
Request shall be in the form contained in the certificates representing
Preferred Securities or otherwise prescribed by the Conversion
Agent.
(iii)
Upon receipt of a properly completed and executed Conversion
Request, (A) the Conversion Agent will surrender the Preferred Securities to be
converted to the Property Trustee, who will in turn cause the Debenture Trustee
to exchange such Preferred Securities for a corresponding amount of Debentures;
(B) the Debenture Trustee will convert such Debentures into shares of Company
Common Stock at the Conversion Price; and (c) the Conversion Agent will
distribute such Conversion Stock to the Holder who surrendered Preferred
Securities for conversion.
(iv)
Distributions accruing between Distribution Dates shall not be paid
on Preferred Securities that are converted pursuant to this Section 5(b), nor
shall any payment, allowance or adjustment be made for accumulated and unpaid
Distributions, whether or not in arrears, on converted Preferred Securities,
except that if any Preferred Security is converted on or after a record date for
payment of Distributions thereon and prior to the related Distribution Date, the
amount of the Distributions payable on the related Distribution Date with
respect to such Preferred Security shall be paid by the converting Holder to the
Trust and the Distributions payable on the related Distribution Date with
respect to such Preferred Security shall be distributed to the Holder on such
record date, despite such conversion. The Depositor shall make no payment or
allowance for distributions on the shares of Conversion Stock issued upon such
conversion, except to the extent that such shares of Conversion Stock are held
of record on the record date for any such distributions and except as provided
in Section 17.3 of the Indenture. Preferred Securities shall be deemed to
have been converted immediately prior to the close of business on the day on
which a Conversion Request relating to such Preferred Securities is received by
the Trust in accordance with the foregoing provisions of this Section 5(b)
(the "Conversion Date"). The Person or Persons entitled to receive the
Conversion Stock shall be treated for all purposes as the record holder or
holders of such Conversion Stock at such time. As promptly as practicable on or
after the Conversion Date, the Depositor shall issue and deliver at the office
of the Conversion Agent a certificate or certificates for the number of full
shares of Conversion Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share calculated by multiplying
the fractional interest by the Conversion Price) to the Person or Persons
entitled to receive the same herein, unless otherwise directed by the Holder in
the Conversion Request, and the Conversion Agent shall distribute such
certificate or certificates to such Person or Persons.
(v)
Upon delivery of a Conversion Request with respect to Preferred Securities, such
Preferred Securities (and the related amount of Debentures) will represent only
the right to receive the appropriate amount of Conversion Stock (and any accrued
but unpaid Distributions through the record date for Distributions most recently
preceding, but not including, the date of the Conversion Notice); provided,
however, that if the Conversion Notice is rejected by the Conversion Agent for
any reason (e.g., failure to complete all required information), the relevant
Preferred Securities and Debentures shall remain outstanding unless an until a
Conversion Notice in proper form is received and accepted by the Conversion
Agent.
(c) The
Preferred Securities shall be convertible at the office of the Conversion Agent
into fully paid and nonassessable shares of Company Common Stock upon the
Mandatory Conversion Date, or pursuant to the Holder's delivery of a Conversion
Notice, together with (if the Preferred Securities are held in certificated
form) the certificate representing the Preferred Security to be
converted, in proper form to the Conversion Agent, at an initial
conversion ratio provided for in the Indenture of 40 shares of Company Common
Stock per $1,000 liquidation value of Preferred Securities or principal amount
of Debentures, representing a conversion price of $25.00 per share of Conversion
Stock issued, subject to certain adjustments set forth in the terms of the
Indenture (as so adjusted, the "Conversion Price"). The
Conversion Agent shall deliver the shares of Conversion Stock to the
converting Holder (or such other Person or Persons as the converting Holder may
permissibly designate) free and clear of all liens, charges, security interests
and encumbrances, except for United States withholding taxes.
(d) Each
Holder of a Preferred Security by acceptance thereof appoints the Conversion
Agent as such Holder's agent for the purpose of effecting the conversion of
Trust Securities in accordance with this Section 5. In effecting the
conversion and transactions described in Section 5(b), the Conversion Agent
shall be acting as agent of the Holder directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Preferred Securities from time to time for Debentures held by the Trust in
connection with the conversion of such Preferred Securities under this Section
5, and (ii) to convert all or a portion of the Debentures into Company
Common Stock and thereupon to deliver such shares of Conversion Stock in
accordance with the provisions of this Section 5 and to deliver to the
Trust a new Debenture or Debentures for any resulting unconverted principal
amount.
(e) The
Depositor shall pay any and all taxes that may be payable in respect of the
issue or delivery of shares of Conversion Stock hereunder. The Depositor shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Conversion Stock in a
name other than that in which the Preferred Securities so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Trust the amount of any
such tax or has established to the satisfaction of the Trust that it has been
paid.
(f) Nothing
in this Section 5 shall (1) limit the requirements of the Trust to withhold
taxes pursuant to the terms of the Trust Securities or as set forth in this
Trust Agreement or (2) otherwise require the Property Trustee, the Delaware
Trustee or the Trust to pay any amount on account of such
withholdings.
6. Voting Rights - Preferred
Securities.
(a) Except
as provided under Sections 6(b) and 8 and as otherwise required by law and the
Trust Agreement, the Holders of the Preferred Securities will have no voting
rights.
(b) So
long as any Debentures are held by the Property Trustee, the Trustees shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power
conferred on such Debenture Trustee with respect to the Debentures, (ii) waive
any past default that is waivable under Section 5.07 of the Indenture, (iii)
exercise any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the Debentures or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of a Majority in Liquidation Amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior approval of
each Holder of the Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities except by subsequent vote of such
Holders. The Property Trustee shall notify each Holder of Preferred
Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of such
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an opinion of counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States federal income tax purposes on
account of such action.
If an Event of Default under the Trust
Agreement has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium, if any, or
interest on the Debentures on any due date (including any Interest Payment Date
or prepayment date or Stated Maturity), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of or premium, if any, or interest on a Like Amount of Debentures
(a "Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the
Common Securities Holder will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder of Preferred Securities in such Direct Action. Except
as provided in the second preceding sentence, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
Any approval or direction of Holders of
Preferred Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Property
Trustee will cause a notice of any meeting at which Holders of Preferred
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record of
Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consent.
No vote or consent of the Holders of
the Preferred Securities will be required for the Trust to redeem and cancel
Preferred Securities or to distribute the Debentures in accordance with the
Trust Agreement and the terms of the Securities.
Notwithstanding that Holders of
Preferred Securities are entitled to vote or consent under any of the
circumstances described above, any of the Preferred Securities that are owned by
the Depositor or any Affiliate of the Depositor shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
7. Voting Rights - Common
Securities.
(a) Except
as provided under Sections 7(b), 7(c) and 8 as otherwise required by law and the
Trust Agreement, the Holders of the Common Securities will have no voting
rights.
(b) Unless
a Debenture Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by the Holder of the Common Securities. If
a Debenture Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by the holders of a
Majority in Liquidation Amount of the outstanding Preferred
Securities. In no event will the Holders of the Preferred Securities
have the right to vote to appoint, remove or replace the Administrative
Trustees, which voting rights are vested exclusively in the Depositor as the
holder of the Common Securities. No resignation or removal of a
Trustee and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Trust Agreement.
(c) So
long as any Debentures are held by the Property Trustee, the Trustees shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power
conferred on such Debenture Trustee with respect to the Debentures, (ii) waive
any past default that is waivable under Section 5.07 of the Indenture, (iii)
exercise any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the Debentures or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of a Majority in Liquidation Amount of all outstanding Common
Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior approval of
each Holder of the Common Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the Holders of the
Common Securities except by subsequent vote of such Holders. The
Property Trustee shall notify each Holder of Common Securities of any notice of
default with respect to the Debentures. In addition to obtaining the
foregoing approvals of such Holders of the Common Securities, prior to taking
any of the foregoing actions, the Trustees shall obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as a corporation for United States federal income tax
purposes on account of such action.
If an Event of Default under the Trust
Agreement has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium, if any, or
interest on the Debentures on the due date (including any Interest Payment Date
or prepayment date or Stated Maturity) (or in the case of redemption, on the
redemption date), then a Holder of Common Securities may institute a Direct
Action for enforcement of payment to such Holder of the principal of or premium,
if any, or interest on a Like Amount of Debentures on or after the respective
due date specified in the Debentures. In connection with Direct
Action, the rights of the Holders of Preferred Securities will be subrogated to
the rights of such Holder of Common Securities to the extent of any payment made
by the Debenture Issuer to such Holder of Common Securities in such Direct
Action. Except as provided in the second preceding sentence, the
Holders of Common Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures.
Any approval or direction of Holders of
Common Securities may be given at a separate meeting of Holders of Common
Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The
Administrative Trustees will cause a notice of any meeting at which Holders of
Common Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of
the Common Securities will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with the Trust
Agreement and the terms of the Securities.
8.
Amendments to
Trust Agreement and Indenture.
In addition to the requirements set out
in Section 12.1 of the Trust Agreement, the Trust Agreement may be amended from
time to time by the Depositor and the Trustees, without the consent of the
Holders of the Securities (i) to cure any ambiguity, correct or supplement any
provisions in the Trust Agreement that may be inconsistent with any other
provisions, or to make any other provisions with respect to matters or questions
arising under the Trust Agreement which shall not be inconsistent with the other
provisions of the Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of the Trust Agreement to such extent as shall be necessary (A) to
ensure that the Trust will be classified for United States federal income tax
purposes as a grantor trust at all times that any Securities are outstanding,
(B)to ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act, or (C) to ensure that the proceeds
from the sale of the Securities will constitute "Tier 1 capital" under capital
adequacy requirements which may be applicable to the Depositor; provided, however, that in the
case of clause (i), such action shall not adversely affect in any material
respect the interests of any Holder of Securities. Any amendments of
the Trust Agreement pursuant to the foregoing shall become effective when notice
thereof is given to the holders of the Securities. The Trust
Agreement also may be amended by the Trustees and the Depositor with (i) the
consent of Holders representing a Majority in Liquidation Amount of all
outstanding Securities, and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust for United States federal income tax purposes or the
Trust's exemption from status as an investment company under the Investment
Company Act, provided that, without the
consent of each Holder of Trust Securities, the Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution required
to be made in respect of the Trust Securities as of a specified date or (ii)
restrict the right of a holder of Trust Securities to institute suit for the
enforcement of any such payment on or after such date.
9.
Pro
Rata.
A reference in these terms of the
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
Liquidation Amount of the Securities held by the relevant Holder in relation to
the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Trust Agreement has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Preferred Securities pro rata
according to the aggregate Preferred Liquidation Amount of Preferred Securities
held by the relevant Holder relative to the aggregate Preferred Liquidation
Amount of all Preferred Securities outstanding, and only after satisfaction of
all amounts owed to the Holders of the Preferred Securities, to each Holder of
Common Securities pro rata according to the aggregate Common Liquidation Amount
of Common Securities held by the relevant Holder relative to the aggregate
Common Liquidation Amount of all Common Securities outstanding.
10. Ranking.
The Preferred Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common
Securities, except that, if an Event of Default under the Trust Agreement occurs
and is continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the Holders of the Preferred Securities shall be paid in
full the Distributions, Redemption Price, Liquidation Distribution and other
payments to which they are entitled at such time.
11. Acceptance of Securities Guaranty and
Indenture.
Each Holder of Preferred Securities and
Common Securities, by the acceptance thereof, agrees to the provisions of the
Preferred Securities Guaranty, including the subordination provisions therein,
and to the provisions of the Indenture.
12. No Preemptive
Rights.
The Holders of the Securities shall
have no preemptive rights or similar rights to subscribe for any additional
securities.
13. Miscellaneous.
These terms constitute a part of the
Trust Agreement.
The Depositor will provide a copy of
the Trust Agreement, the Preferred Securities Guaranty and the Indenture
(including any supplemental indenture) to a Holder without charge on written
request to the Depositor at its principal place of
business.
EXHIBIT
A-1
FORM
OF PREFERRED SECURITY CERTIFICATE
[Restricted
Securities Legend]
THIS PREFERRED SECURITY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR ANY APPLICABLE STATE SECURITIES LAW. THIS
PREFERRED SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO OR
FOR RESALE IN CONNECTION WITH THE DISTRIBUTION THEREOF. NO
DISPOSITION OF THIS SECURITY MAY BE MADE IN THE ABSENCE OF (I) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (II) PURSUANT TO AN EXEMPTION
FROM OR A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR APPLICABLE STATE SECURITIES LAW.
EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
REGULATION D THEREUNDER. EACH HOLDER OF THIS SECURITY REPRESENTS TO
SERVISFIRST CAPITAL TRUST II THAT (A) SUCH HOLDER WILL NOT SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY (WITHOUT THE CONSENT OF SERVISFIRST CAPITAL
TRUST II) OTHER THAN (I) TO SERVISFIRST CAPITAL TRUST II, (II) IN THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (III) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES
ACT, (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT SUBJECT IN THE CASE OF CLAUSE (II), (III) OR (IV) TO THE RECEIPT
BY THE REGISTRAR (AND SERVISFIRST CAPITAL TRUST II, IF IT SO REQUESTS) OF AN
OPINION OF COUNSEL OR SUCH OTHER EVIDENCE ACCEPTABLE TO SERVISFIRST CAPITAL
TRUST II THAT SUCH RESALE, PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO
HEREIN AND DELIVER TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL
BUYER) PRIOR TO THE SALE A COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO
(COPIES OF WHICH MAY BE OBTAINED FROM THE TRUSTEE).
[Certificated
Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[Global
Securities Legend]
THIS PREFERRED SECURITY IS A GLOBAL
PREFERRED SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS
PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF
THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO SERVISFIRST CAPITAL TRUST II OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OR PORTIONS OF THIS
GLOBABL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT.
[FORM OF
FACE OF SECURITY]
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Certificate
Number
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Number
of Preferred Securities
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CUSIP
NO.
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Certificate
Evidencing Preferred Securities of
SERVISFIRST
CAPITAL TRUST II
6.0%
Preferred Securities
(Liquidation
Amount $1,000 per Preferred Security)
SERVISFIRST CAPITAL TRUST II, a
statutory trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that
(the "Holder") is the registered owner of
[or such other amount as is indicated on Schedule A hereto]* Preferred Securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the 6.0% Preferred Securities (Liquidation Amount $1,000 per
Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of the Trust dated as
of March 15, 2010, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Preferred Securities
as set forth in Annex I to the Trust Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the Trust
Agreement. The Depositor will provide a copy of the Trust Agreement,
the Preferred Securities Guaranty and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the
Holder is bound by the Trust Agreement and is entitled to the benefits
thereunder and to the benefits of the Preferred Securities Guaranty to the
extent provided therein.
By its acceptance hereof, the Holder
agrees to treat, for United States federal income tax purposes, the Debentures
as indebtedness and the Preferred Securities as evidence of indirect beneficial
ownership in the Debentures.
IN WITNESS WHEREOF, an Administrative
Trustee on behalf of the Trust has duly executed this certificate.
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Date: ___________________
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SERVISFIRST
CAPITAL TRUST II
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By:
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Name:
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Title: Administrative
Trustee
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*
Insert in the Global Preferred Security only.
PROPERTY
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is
one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.
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WILMINGTON
TRUST COMPANY,
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as
Property Trustee
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By:
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Authorized
Officer
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[SEAL]
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[FORM OF
REVERSE OF SECURITY]
During the Interest Period,
Distributions payable on each Preferred Security will be fixed at a rate per
annum of 6.0% (the "Coupon Rate") of the Liquidation Amount of $1,000 per
Preferred Security (the "Liquidation Amount"), such distribution rate being the
rate of interest payable on the Debentures to be held by the Property
Trustee. The "Interest Period" means the period commencing on the
original issue date and ending on March 15, 2040.
Distributions in arrears for more than
one quarterly period will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Property Trustee has funds on hand
legally available therefor.
Distributions on the Preferred
Securities will be cumulative, will accumulate from the most recent date to
which Distributions have been paid or, if no Distributions have been paid, from
March 15, 2010, and will be payable quarterly in arrears, on June 15, September
15, December 15 and March 15 of each year, commencing on June 15, 2010, except
as otherwise described below and in the Trust
Agreement. Distributions will be computed on the basis of the actual
number of days elapsed over a 360-day year of 30-day months. As long
as no Event of Default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period at any time and from time to time on
the Debentures for a period not exceeding 20 consecutive calendar quarterly
periods, including the first such quarterly period during such extension period
(each an "Extension Period"), provided that no Extension Period shall extend
beyond the Stated Maturity of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accumulate with interest
thereon (to the extent permitted by applicable law, but not at a rate exceeding
the rate of interest then accruing on the Debentures) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period, together with all such previous and further extensions
within such Extension Period, may not exceed 20 consecutive quarterly periods,
including the first quarterly period during such Extension Period, or extend
beyond the Stated Maturity of the Debentures. Payments of
Distributions that have accumulated but not been paid during any Extension
Period will be payable to Holders as they appear on the books and records of the
Trust on the records of the Trust on the record date for the first scheduled
Distribution Date following the expiration of such first record date after the
end of the Extension Period. Upon the expiration of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
Subject to certain conditions set forth
in the Trust Agreement and the Indenture, the Property Trustee shall, at the
direction of the Depositor, at any time liquidate the Trust and cause the
Debentures to be distributed to the holders of the Securities in liquidation of
the Trust or, simultaneous with any redemption of the Debentures, cause a Like
Amount of the Securities to be redeemed by the Trust.
The Preferred Securities shall be
redeemable as provided in the Trust Agreement.
Any Holder has the right, exercisable
at any time after issuance, and on or before the close of business on the
Business Day immediately preceding the date of repayment of the Preferred
Securities, whether at maturity or upon redemption, to convert the Preferred
Securities held by such holder (or any portion thereof with a liquidation amount
that is an integral multiple of $5,000) into fully paid and nonassessable shares
of Company Common Stock at an initial conversion price of $25.00 per share of
Company Common Stock, subject to adjustment under certain circumstances (the
"Conversion Price"). The number of shares of Company Common Stock issuable upon
conversion of Preferred Securities shall be determined by dividing (1) the
aggregate liquidation amount of the Preferred Securities to be converted by
(B) the Conversion Price. No fractional shares of Company Common Stock
shall be issued upon conversion and, in lieu thereof, a cash payment shall be
made for any fractional interest, based upon Conversion Price. The outstanding
liquidation of any Preferred Security shall be reduced by the portion of the
principal amount thereof converted into shares of Company Common
Stock.
To
convert a Preferred Security, a Holder must (i) complete and sign a
Conversion Request substantially in the form attached hereto,
(ii) surrender the Preferred Security (if in certificated form) to the
Conversion Agent, (iii) furnish appropriate endorsements or transfer
documents if required by the Preferred Security Registrar or Conversion Agent,
and (iv) pay any transfer or similar tax, if required. If a Conversion
Request is delivered on or after the regular record date and prior to the
subsequent Distribution Date, the Securityholder shall be required to pay to the
Company the amount of the Distribution to be made on the subsequent Distribution
Date, and shall be entitled to receive the Distribution payable on the
subsequent Distribution Date, on the portion of Preferred Securities to be
converted notwithstanding the conversion thereof prior to such Distribution
Date. Notwithstanding the foregoing, if, during an Extended Interest Payment
Period, a notice of redemption is mailed pursuant to the Trust Agreement and a
Preferred Security is converted after such mailing but prior to the relevant
redemption date, all accrued but unpaid Distributions through the date of
conversion shall be paid to the Holder on the redemption date. Except as
otherwise provided in the immediately preceding two sentences, in the case of
any Preferred Security which is converted, Distributions with a Distribution
Date which is after the date of conversion of such Preferred Security shall not
be payable, and the Trust shall not make or be required to make any other
payment, adjustment or allowance with respect to accrued but unpaid
Distributions on the Preferred Securities being converted, which shall be deemed
to be paid in full. If any Preferred Security called for redemption is
converted, any money deposited with the Debenture Trustee or with any Paying
Agent or so segregated and held in trust for the redemption of such Preferred
Security shall be paid to the Company upon Company request or, if then held by
the Company, shall be discharged from such trust.
To the extent not previously prepaid
pursuant or converted into shares of Company Stock, all Preferred Securities
will automatically and mandatorily convert into shares of Company Common Stock
on the Mandatory Conversion Date, March 15, 2013, at the Conversion
Price.
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned assigns and transfers this Preferred Security
Certificate to:
(Insert
assignee's social security or tax identification number)
(Insert
address and zip code of assignee)
and
irrevocably appoints
agent to transfer this
Preferred Security Certificate on the books of the Trust. The agent
may substitute another to act for him or her.
Date:
Signature:
(Sign
exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature
Guarantee*:
* Signature
must be guaranteed by an "eligible guarantor institution" that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as in effect from time to
time.
FORM
OF CONVERSION REQUEST
To: Servisfirst
Capital Trust II. and Wilmington Trust Company, or any successor Conversion
Agent:
The
undersigned owner of these Preferred Securities hereby irrevocably elects to
convert these Securities, or the portion below designated, into Company Common
Stock in accordance with the terms of the Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of March 15, 2010, between ServisFirst
Bancshares, Inc., and Wilmington Trust Company, as Trustee.
The
undersigned owner of these Preferred Securities hereby directs the Conversion
Agent to convert such Preferred Securities on behalf of the undersigned, into
Company Common Stock (at the Conversion Price specified in the Trust Agreement).
The undersigned owner of these Preferred Securities also hereby notifies the
Conversion Agent that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, should be issued in
the name of and delivered to the undersigned, unless a different name has been
indicated in the assignment below. (If shares are to be issued in the name of a
person other than the undersigned, the undersigned shall pay all transfer taxes
payable with respect thereto.)
Date:
____________________
Liquidation
Amount of Preferred Securities to be converted ($5,000 or integral multiples
thereof): $
If
a name or names other than the undersigned, please indicate in the spaces below
the name or names in which the shares of Company Common Stock are to be issued,
along with the address or addresses of such person or persons:
(Sign
exactly as your name appears on the other side of this Preferred
Security)
(for
conversion only)
Please
print or type name and address, including zip code, and social security or other
identifying number:
Signature
Guarantee:*
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*
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Signature
must be guaranteed by an eligible guarantor institution that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program
(STAMP) or such other signature guarantee program as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of
1934.
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SCHEDULE
A
PREFERRED
SECURITY OWNERSHIP INTEREST TABLE
The initial aggregate liquidation
amount of the Preferred Securities evidenced by the Certificate to which this
Schedule A is attached is $_________________. The notations on the
following table evidence the decreases and increases in the aggregate principal
amount of the Preferred Securities evidenced by such Certificate.
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Decrease in
Liquidation
Amount of
Preferred Securities
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Increase in
Liquidation Amount
of Preferred
Securities
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Liquidation Amount
of Preferred Securities
Remaining After Such
Decrease or Increase
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Notation by
Registrar
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EXHIBIT
A-2
FORM
OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR ANY APPLICABLE STATE SECURITIES LAW. THIS COMMON
SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE
IN CONNECTION WITH THE DISTRIBUTION THEREOF. NO DISPOSITION OF THIS
SECURITY MAY BE MADE IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (II) PURSUANT TO AN EXEMPTION FROM OR A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAW.
[FORM OF
FACE OF CERTIFICATE]
|
Certificate
Number
|
Number
of Common Securities
|
Certificate
Evidencing Common Securities
of
SERVISFIRST
CAPITAL TRUST II
6.0%
Common Securities
(Liquidation
Amount $1 per Common Security)
SERVISFIRST CAPITAL TRUST II, a
statutory trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ServisFirst Bancshares, Inc. (the "Holder") is the
registered owner of
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the 6.0% Common Securities (liquidation
amount $1 per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of the Trust dated as
of March 15, 2010, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common Securities as
set forth in Annex I to the Trust Agreement. Capitalized terms used
but not defined herein shall have the meaning given them in the Trust
Agreement. The Depositor will provide a copy of the Trust Agreement
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Depositor at its principal place of
business.
Upon receipt of this certificate, the
Holder is bound by the Trust Agreement and is entitled to the benefits
thereunder.
By its acceptance hereof, the Holder
agrees to treat, for United States federal income tax purposes, the Debentures
as indebtedness and the Common Securities as evidence of indirect beneficial
ownership in the Debentures.
IN WITNESS WHEREOF, an Administrative
Trustee on behalf of the Trust has duly executed this certificate.
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Date: ___________________
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SERVISFIRST
CAPITAL TRUST II
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By:
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Name:
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Administrative
Trustee
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[FORM OF
REVERSE OF SECURITY]
During the Interest Period,
Distributions payable on each Common Security will be fixed at a rate per annum
of 6.0% (the "Coupon Rate") of the liquidation amount of $1 per Common Security
(the "Liquidation Amount"), such distribution rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. The
"Interest Period" means the period commencing on the issue date and ending on
March 15, 2040.
Distributions in arrears for more than
one quarterly period will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Property Trustee has funds available
therefor.
Distributions on the Common Securities
will be cumulative, will accrue from the most recent date to which Distributions
have been paid or, if no Distributions have been paid, from March 15, 2010 and
will be payable quarterly in arrears, on June 15, September 15, December 15 and
March 15 of each year, commencing on June 15, 2010, except as otherwise
described below and in the Trust Agreement. Distributions will be
computed on the basis of the actual number of days elapsed over a 360-day
year. As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period at any time
and from time to time on the Debentures for a period not exceeding 10
consecutive calendar quarterly periods, including the first such quarterly
period during such extension period (each an "Extension Period"), provided that
no Extension Period shall extend beyond the Stated Maturity of the
Debentures. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions within such Extension Period, may not
exceed 20 consecutive quarterly periods, including the first quarterly period
during such Extension Period, or extend beyond the Stated Maturity of the
Debentures. Payments of Distributions that have accumulated will be
payable to Holders as they appear on the books and records of the Trust on the
record date for the first Distribution Date following the expiration of such
Extension Period. Upon the expiration of any Extension Period and the
payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
Subject to certain conditions set forth
in the Trust Agreement and the Indenture, the Property Trustee shall, at the
direction of the Depositor, at any time liquidate the Trust and cause the
Debentures to be distributed to the holders to the Securities in liquidation of
the Trust or, simultaneous with any redemption of the Debentures, cause a Like
Amount of the Securities to be redeemed by the Trust.
The Common Securities shall be
redeemable as provided in the Trust Agreement.
THIS COMMON SECURITY MAY NOT BE
TRANSFERRED EXCEPT TO SERVISFIRST BANCSHARES, INC. OR A RELATED PARTY (AS
DEFINED IN THE TRUST AGREEMENT).
______________________
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned assigns and transfers this Common Security Certificate
to:
(Insert
assignee's social security or tax identification number)
(Insert
address and zip code of assignee)
and
irrevocably appoints
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or
her.
Date:
Signature:
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
Signature
Guarantee*:
* Signature
must be guaranteed by an "eligible guarantor institution" that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as in effect from time to
time.
EXHIBIT
B
FORM
OF TRANSFER CERTIFICATE
In connection with any transfer of any
of the Preferred Securities evidenced by this certificate, the undersigned
confirms that such Preferred Securities are being:
CHECK ONE
BOX BELOW
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(1)
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¨
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exchanged
for the undersigned's own account without transfer;
or
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(2)
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¨
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transferred
to a person whom the undersigned reasonably believes to be a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"), who is purchasing such Preferred
Securities for such buyer's own account or the account of a "qualified
institutional buyer" in a transaction meeting the requirements of Rule
144A under the Securities Act and any applicable securities laws of any
state of the United States or any other jurisdiction;
or
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(3)
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¨
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transferred
to an "accredited investor" within the meaning of Rule 501(a) of
Regulation D under the Securities Act pursuant to Rule 144 (and based upon
an opinion of counsel if the Depositor or the Trustee so requests) and, to
the knowledge of the transferor of the Preferred Securities, such
accredited investor to whom such Preferred Securities are to be
transferred is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company; or
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(4)
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¨
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transferred
pursuant to another available exemption from the registration requirements
of the Securities Act.
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Unless one of the boxes is checked, the
Trustee will refuse to register any of the Preferred Securities evidenced by
this certificate in the name of any person other than the registered Holder
thereof; provided, however, that if box
(3) or (4) is checked, the Company may require, prior to registering any such
transfer of the Preferred Securities, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act, such as the
exemption provided by Rule 144 under the Securities Act; provided, further, that if box
(2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
TO
BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants
that it is purchasing this Preferred Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date:
NOTICE: To
be executed by an executive officer.
EXHIBIT
C
FORM
OF LETTER TO BE DELIVERED BY ACCREDITED INVESTORS
ServisFirst Capital
Trust II
c/o
ServisFirst Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
Ladies
and Gentlemen:
The
undersigned is delivering this letter in connection with the prospective
transfer of the 6.0% Trust Preferred Securities (the "Preferred Securities")
of ServisFirst Capital Trust II, a Delaware statutory trust (the
"Trust"). The undersigned understands that the Preferred Securities
were issued in connection with a transaction not involving any public
offering within the United States within the meaning of, or in transactions not
subject to registration under, the Securities Act of 1933, as amended (the
"Securities Act"), and that the Preferred Securities have not been registered
under the Securities Act or any applicable state securities law.
The
undersigned agrees, on its own behalf and on behalf of each account for which
the undersigned may acquire any Preferred Securities, that prior to the
expiration of the holding period applicable to sales of restricted securities
pursuant to Rule 144 under the Securities Act, the Preferred Securities may be
offered, resold, pledged or otherwise transferred only in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction (i) (a) so long as the Preferred Securities are eligible
for resale pursuant to Rule 144A, to a person the seller reasonably believes is
a "qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, or (c) in accordance with
another exemption from the registration requirements of the Securities Act,
provided that in the case of a transfer, pledge or sale pursuant to this clause
(c), such transfer is subject to the receipt by the registrar (and ServisFirst
Bancshares, Inc (the "Company"), if it so requests) of a certification of the
transferor and an opinion of counsel to the effect that such transfer is in
compliance with the Securities Act, (ii) to the Company or its affiliates, (iii)
pursuant to an effective registration statement under the Securities Act and
(iv) in each case, in accordance with any applicable securities laws of the
United States or any other applicable jurisdiction and in accordance with the
legends set forth on the Preferred Securities. The undersigned
further agrees to provide any person purchasing any of the Preferred Securities
from the undersigned a notice advising such purchaser that resales of such
Preferred Securities are restricted as stated herein. The undersigned
understands that the registrar for the Preferred Securities will not be required
to accept for registration of transfer any Preferred Securities, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. The undersigned
further understands that the Preferred Securities will bear a legend reflecting
the substance of this paragraph.
The
undersigned confirms that:
(i) the
undersigned is an "accredited investor" within the meaning of Rule 501(a) under
the Securities Act (an "Accredited Investor");
(ii) any
purchase of Preferred Securities by the undersigned will be for the
undersigned's own account or for the account of one or more Accredited Investors
or as fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a) under the Securities Act
and for each of which the undersigned exercises sole investment
discretion;
(iii) the
undersigned has such knowledge and experience in financial and business matters
that the undersigned is capable of evaluating the merits and risks of purchasing
Preferred Securities;
(iv) the
undersigned is not acquiring Preferred Securities with a view to distribution
thereof or with any present intention of offering or selling Preferred
Securities, except as permitted above; provided that the disposition of the
undersigned's property and property of any accounts for which the undersigned is
acting as fiduciary shall remain at all times within the undersigned's control;
and
(vi)
the undersigned has received a copy of the Confidential
Offering Memorandum relating to the Preferred Securities and acknowledges that
the undersigned has had access to such financial and other information, and has
been afforded the opportunity to ask such questions of representatives of the
Company and receive answers thereto, as the undersigned deems necessary in
connection with the undersigned's decision to purchase Preferred
Securities.
The
undersigned acknowledges that the Company, others and you will rely upon the
undersigned's confirmations, acknowledgements and agreements set forth herein,
and the undersigned agrees to notify you promptly in writing if any of the
representations or warranties herein ceases to be accurate and complete. You are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
Date:
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(Institutional
Purchaser)
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OR
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(Individual
Purchaser)
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Name
of Institutional Purchaser
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Name:
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Address:
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By:
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Name:
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Title:
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Address:
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EXHIBIT
D
CERTIFICATE
TO TRUSTEE
Pursuant to Section 2.4 of the Amended
and Restated Trust Agreement between ServisFirst Bancshares, Inc. as the Company
(the "Company'), and Wilmington Trust Company, as Trustee, dated as of March 15,
2010 (the "Trust Agreement"), the undersigned hereby certifies as
follows:
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1.
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In
my capacity as an officer of the Company, I would normally have knowledge
of any default by the Company during the last fiscal year in the
performance of any covenants of the Company contained in the
Indenture.
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2.
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[To
my knowledge, the Company is not default in the performance of any
covenants contained in the
Indenture.
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I
am aware of the default(s) in the performance of covenants in the
Indentures, as specified below.] PLEASE
PICK THE ONE THAT APPLIES and DELETE THE ONE THAT DOES NOT.
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Capitalized terms used herein, and not
otherwise defined herein, have the respective meanings ascribed to thereto in
the Indenture.
IN WITNESS WHEREOF, the undersigned has
executed this Officers' Certificate.
Date: ________
___, 20__
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Name:
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Title:
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Name:
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Title:
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