As filed with the Securities and
Exchange Commission on August 8, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEWMARK GROUP, INC.
(Exact Name of Registrant as Specified
in Its Charter)
Delaware | |
81-4467492 |
(State or Other Jurisdiction of | |
(I.R.S. Employer |
Incorporation or Organization) | |
Identification No.) |
125 Park Avenue
New York, New York 10017
(212) 372-2000
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal Executive Offices)
Stephen M. Merkel
Executive Vice President, Chief Legal
Officer and Assistant Corporate Secretary
Newmark Group, Inc.
125 Park Avenue
New York, New York 10017
(212) 372-2000
(Name, Address, Including Zip Code, and
Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Leland S. Benton
Howard A. Kenny
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave. NW
Washington, DC 20004
(202) 739-3000
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
☐
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. ☒
If this Form is filed to
register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☒ |
Accelerated filer |
☐ |
Non-accelerated filer |
☐ |
Smaller reporting company |
☐ |
|
|
Emerging growth company |
☐ |
If
an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
![](https://www.sec.gov/Archives/edgar/data/1690680/000121390024066651/image_001.jpg)
7.500% Senior Notes due
2029
This prospectus of Newmark
Group, Inc., which we refer to as “Newmark,” the “Company,” “we,” “us,” or “our,”
may be used by our affiliate, Cantor Fitzgerald & Co., which we refer to as “CF&Co,” in connection with offers and
sales by CF&Co of our 7.500% Senior Notes due 2029 (Cusip No. 65158N AD4), which we refer to as the “Notes,” in market-making
transactions. Market-making transactions in the Notes may occur in the open market or may be privately negotiated at prevailing market
prices at the time of sale or at related or negotiated prices. In these transactions, CF&Co may act as principal or agent, including
as agent for the counterparty in a transaction in which CF&Co acts as principal, or as agent for both counterparties in a transaction
in which CF&Co does not act as a principal. CF&Co may receive compensation in the form of discounts and commissions, including
from both counterparties in some cases. Other affiliates of ours may also engage in market-making transactions of this kind and may use
this prospectus for that purpose.
We will not receive any proceeds
from these market-making transactions.
Neither CF&Co, nor any
of our other affiliates, has any obligation to make a market in the Notes, and CF&Co, or any such other affiliate, may discontinue
market-making activities at any time without notice.
The Notes are not listed on
any exchange.
Investing in our securities
involves risks. See “Risk Factors” beginning on page 3 of this prospectus, as well as the risks described under “Special
Note Regarding Forward-Looking Information” and under “Risk Factors” in our most recent Annual Report on Form 10-K filed
with the Securities and Exchange Commission, which we refer to as the “SEC,” and any updates to those risks contained in our
subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC, all of which we incorporate by reference
herein other than as specified.
Neither the SEC nor any
state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is August 8, 2024.
TABLE OF CONTENTS
You should rely only on the information provided
in this prospectus, as well as the information incorporated by reference in this prospectus. We have not authorized anyone to provide
you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You
should not assume that the information in this prospectus or any documents incorporated by reference is accurate as of any date other
than the date of the applicable document. Since the respective dates of this prospectus and the documents incorporated by reference, our
business, financial condition, results of operations and prospects might have changed.
ABOUT THIS PROSPECTUS
This prospectus and the documents
incorporated by reference herein include important information about us, the Notes, this offering, and other information you should know
before investing. You should read this prospectus together with the additional information described under the headings “Where You
Can Find More Information” and “Documents Incorporated by Reference.”
Terms used in this prospectus,
unless otherwise defined herein, have the meanings set forth in the “Glossary of Terms, Abbreviations and Acronyms” section
of our latest Annual Report on Form 10-K filed with the SEC, which we refer to as the “Glossary,” and any updates to the Glossary
or any new Glossary contained in our subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC, all
of which we incorporate by reference herein other than as specified.
This prospectus incorporates
by reference market data, industry statistics and other data that have been obtained from, or compiled from, information made available
by third parties. We have not independently verified their data. This prospectus and the information incorporated herein by reference
include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included
or incorporated by reference into this prospectus are the property of their respective owners.
SUMMARY
This summary highlights
information contained elsewhere or incorporated by reference in this prospectus. This summary may not contain all of the information that
is important to you, and it is qualified in its entirety by the more detailed information and financial statements, including the notes
to those financial statements, appearing elsewhere or incorporated by reference in this prospectus. Please see the sections titled “Where
You Can Find More Information” and “Documents Incorporated by Reference.” Before making an investment decision, we encourage
you to consider the information contained in and incorporated by reference in this prospectus, including the risks discussed under the
heading “Risk Factors” beginning on page 3 of this prospectus, as well as the “Risk Factors” and “Risk
Factor Summary” sections of our latest Annual Report on Form 10-K filed with the SEC, and any updates to those risks or new risks
included in our subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC, all of which we incorporate
by reference herein other than as specified.
For
purposes of this portion of the Summary, references to the “Company,” “Newmark,” “we,” “our” and
“us” refer to Newmark Group, Inc. and its consolidated subsidiaries.
The Company
Newmark is a leading commercial
real estate advisor and service provider to large institutional investors, global corporations, and other owners and occupiers. We offer
a diverse array of integrated services and products designed to meet the full needs of our clients.
Our investor/owner services
and products include:
| ● | capital markets, which consists of investment sales and commercial
mortgage brokerage (including the placement of debt, equity raising, structured finance, and loan sales on behalf of third parties); |
| ● | landlord (or agency) leasing; |
| ● | our leading commercial real estate technology platform and
capabilities for owners; |
| ● | business rates for U.K. property owners; |
| ● | due diligence, consulting and other advisory services; |
| ● | government sponsored-enterprise and Federal Housing Administration
lending, including multifamily lending and loan servicing; |
| ● | limited and special loan servicing and asset management; and |
| ● | flexible workspace solutions for owners. |
Our corporate or occupier
services and products include:
| ● | tenant representation leasing; |
| ● | global corporate services, which provides integrated client solutions typically under long-term agreements, including project management, transaction management, lease
administration, and facilities management, as well as corporate consulting services with respect to clients’ needs across real estate
and supply chain optimization, site selection, workplace strategy, and occupancy; |
| ● | our leading commercial real estate technology platform and
capabilities for occupiers; |
| ● | business rates for U.K. occupiers; and |
| ● | flexible workspace solutions for occupiers. |
We have relationships with
many of the world’s largest commercial property owners, real estate developers and investors, as well as Fortune 500 and Forbes
Global 2000 companies.
Executive Offices
Our
executive offices are located at 125 Park Avenue, New York, New York 10017. Our telephone number is (212) 372-2000. Our website is located
at www.nmrk.com. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated
into, this prospectus (except for SEC filings expressly incorporated herein).
The Offering
The summary below describes
the principal terms and conditions of the Notes. Certain of the terms and conditions described below are subject to important limitations
and exceptions. The “Description of the Notes” section of this prospectus contains a more detailed description of the terms
and conditions of the Notes. For purposes of this portion of the Summary, references to the “Company,” “we,” “our”
and “us” refer only to Newmark Group, Inc., and not to our subsidiaries.
Issuer |
Newmark Group, Inc. |
Notes Offered |
$600.0 million aggregate principal amount of Notes. |
Maturity Date |
The Notes will mature on January 12, 2029. |
Ranking |
The Notes are our senior unsecured obligations
and rank equally in right of payment with all of our existing and future senior unsecured debt and senior in right of payment to our debt
that is expressly subordinated to the Notes, if any. The Notes rank effectively junior to our secured debt to the extent of the value
of the assets securing such debt. The Notes are also structurally subordinated to all debt and other liabilities and commitments (including
trade payables) of our subsidiaries.
The indenture and the
second supplemental indenture thereto (collectively, the “indenture”) pursuant to which the Notes were issued do not limit
the amount of debt that we or our subsidiaries may incur. We agreed in the indenture to use an amount equivalent to the net proceeds
from the initial offering of the Notes (after deducting the initial purchasers’ discount and expenses payable by us in connection
with the initial offering of the Notes) to make loans to our subsidiaries pursuant to one or more promissory notes. So long as the Notes
are outstanding, (1) the aggregate principal amount of all such promissory notes shall be not less than the amount of the net proceeds
from the initial offering of the Notes (or if less, the aggregate principal amount of Notes then outstanding), (2) such promissory notes
shall bear interest at rates that shall not be less than that borne by the Notes, and (3) such promissory notes shall have terms not
later than the maturity date of the Notes; provided, that any transfer of such obligation from one subsidiary to another or any refinancing
of any such obligation by another subsidiary shall be permitted from time to time. We further agreed that for so long as the Notes remain
outstanding, any indebtedness for borrowed money we incur after the date of original issuance of the Notes in one transaction, or a series
of related transactions, having an aggregate principal amount in excess of $50.0 million, will be subject to a similar covenant. |
Interest and Interest Payment Dates |
Interest on the Notes accrues at a rate of 7.500% per annum. Interest is payable semi-annually in arrears on January 12 and July 12 of each year. The interest rate payable on the Notes will be subject to adjustments from time to time based on the debt rating assigned by specific rating agencies to the Notes. See “Description of the Notes—Interest Rate Adjustment Based on Rating Events.” |
Optional Redemption |
We may redeem some or all of the Notes at any time or from time to time for cash (i) prior to December 12, 2028, at the “make-whole” redemption prices set forth under “Description of the Notes—Optional Redemption,” and (ii) on or after December 12, 2028, at 100% of the principal amount of such Notes, plus accrued and unpaid interest thereon to, but excluding, the redemption date. |
Change of Control; Offer to Repurchase |
If a Change of Control Triggering Event described under “Description of the Notes—Offer to Repurchase Upon a Change of Control Triggering Event” occurs, we must offer to repurchase the Notes for cash at a purchase price equal to 101% of the principal amount plus accrued and unpaid interest to, but excluding, the repurchase date. See “Description of the Notes—Offer to Repurchase Upon a Change of Control Triggering Event.” |
Use of Proceeds |
We will not receive any of the proceeds from the market-making activities in our Notes by CF&Co or any of our other affiliates pursuant to this prospectus. |
Trustee |
The trustee for the Notes is Regions Bank. |
Governing Law |
The indenture and the Notes are governed by the laws of the State of New York without regard to conflict of laws principles thereof. |
Risk Factors |
Please read the
information contained in and incorporated by reference under the heading “Risk Factors” on page 3 of this prospectus,
and under similar headings in the other documents that are incorporated by reference in this prospectus. We incorporate by reference
in this prospectus the “Risk Factor Summary” section of our latest Annual Report on Form 10-K filed with the SEC, which
we refer to as the “Risk Factor Summary,” and any updates to the Risk Factor Summary contained in our subsequent
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC, all of which we incorporate by reference herein
other than as specified. |
RISK FACTORS
In addition to the other
information included in this prospectus, you should carefully consider the risks described under “Special Note Regarding Forward-Looking
Information,” “Risk Factors” and “Risk Factor Summary” set forth in our most recent Annual Report on Form
10-K, and any updates to those risks or new risks contained in our subsequent Quarterly Reports on Form 10-Q and Current Reports on Form
8-K filed with the SEC, all of which are incorporated by reference in this prospectus other than as specified, and the following risks,
before investing in the Notes.
The risks and uncertainties
discussed below and in the documents referred to above, as well as other matters discussed in this prospectus and in those documents,
could materially and adversely affect our business, financial condition, liquidity and results of operations and the market price of the
Notes. Moreover, the risks and uncertainties discussed below and in the foregoing documents are not the only risks and uncertainties that
we face, and our business, financial condition, liquidity and results of operations and the market price of the Notes could be materially
adversely affected by other matters that are not known to us or that we currently do not consider to be material risks to our business.
Risks Related to the Notes
The Notes are structurally subordinated
to the obligations of our subsidiaries and effectively junior to all secured indebtedness, and this may limit our ability to satisfy our
obligations under the Notes.
The Notes are our senior unsecured
obligations and rank equally with all of our other indebtedness that is not expressly subordinated to the Notes.
We conduct substantially all
of our operations through our subsidiaries. We do not have any material assets other than our direct and indirect ownership in the equity
of our operating subsidiaries. As a result, our cash flow and our ability to service our debt, including the Notes, are dependent upon
the earnings of our subsidiaries. In addition, we are dependent on the distribution of earnings, loans or other payments by our subsidiaries
to us. Certain regulatory requirements and debt and security agreements entered into by our subsidiaries contain various restrictions,
including restrictions on payments by our subsidiaries to us and the transfer by our subsidiaries of assets pledged as collateral. In
the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to any of our subsidiaries, we,
as an equity owner of such subsidiary, and therefore holders of our debt, including the Notes, will be subject to the prior claims of
such subsidiary’s creditors, including trade creditors, and any preferred equity holders.
The Notes are also effectively
subordinated to any secured indebtedness we may incur to the extent of the value of the collateral securing such indebtedness. In the
event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to us, the holders of any secured indebtedness
will be entitled to proceed directly against the collateral that secures such secured indebtedness. Therefore, such collateral will not
be available for satisfaction of any amounts owed under our unsecured indebtedness, including the Notes, until such secured indebtedness
is satisfied in full.
There are limited covenants and protections
in the indenture.
While the indenture governing
the Notes contains terms intended to provide protection to holders upon the occurrence of certain events involving significant corporate
transactions, these terms are limited and may not be sufficient to protect an investment in the Notes. For example, there are no financial
covenants in the indenture. As a result, we are not restricted under the terms of the indenture and the Notes from entering into transactions
that could increase the total amount of our outstanding indebtedness, adversely affect our capital structure or our credit ratings or
associated outlooks, or otherwise adversely affect the holders of the Notes.
As described under “Description
of the Notes—Offer to Repurchase Upon a Change of Control Triggering Event,” upon the occurrence of a Change of Control Triggering
Event holders are entitled to require us to repurchase their Notes for cash at 101% of their principal amount. However, the definition
of the term “Change of Control Triggering Event” is limited and does not cover a variety of transactions (such as acquisitions
by us, recapitalizations or “going private” transactions by our affiliates) that could negatively affect the value of the
Notes. A change of control transaction under the indenture may only occur if there is a change in the controlling interest in us. For
a Change of Control Triggering Event to occur there must be not only a change of control transaction as defined in the indenture, but
also a ratings downgrade resulting from such transaction. If we were to enter into a significant corporate transaction that negatively
affects the value of the Notes, but would not constitute a Change of Control Triggering Event, holders would not have any rights to require
us to repurchase the Notes prior to their maturity, which also would adversely affect their investment.
Ratings of the Notes may not reflect all
risks of an investment in the Notes, and changes in our credit ratings or associated outlooks could adversely affect the market price
of the Notes.
Our long-term debt is currently
rated by four nationally recognized statistical rating organizations. A debt rating is not a recommendation to purchase, sell or hold
the Notes. Moreover, a debt rating does not reflect all risks of an investment in the Notes and does not take into account market price
or suitability for a particular investor.
The market price of the Notes
is based on a number of factors, including our ratings and associated outlooks with major rating agencies. Rating agencies revise their
ratings and associated outlooks for the companies that they follow from time to time, and our ratings and associated outlooks may be revised
or withdrawn in their entirety at any time. We cannot be sure that rating agencies will maintain their current ratings and associated
outlooks. We undertake no obligation to maintain the ratings and associated outlooks or to advise holders of the Notes of any change in
ratings or associated outlooks. A negative change in our ratings or associated outlooks could have an adverse effect on the market price
or liquidity of the Notes, and would increase the interest rate payable on the Notes.
Changes in the credit markets could adversely
affect the market price of the Notes.
The market price for the Notes
is based on a number of factors, including the prevailing interest rates being paid by other companies similar to us, and the overall
condition of the financial markets. The condition of the credit markets and prevailing interest rates have fluctuated in the past and
can be expected to fluctuate in the future. Fluctuations in these factors could have an adverse effect on the price and liquidity of the
Notes.
There may not be an active trading market
for the Notes, which could adversely affect the price of the Notes in the secondary market and your ability to resell the Notes should
you desire to do so.
We do not intend to apply for listing of the Notes
on any securities exchange, and there may not be an active trading market for the Notes.
We cannot make any assurance as to:
| ● | the existence of an active trading market for the Notes; |
| ● | the liquidity of any trading market that may exist; |
| ● | the ability of holders to sell their Notes; or |
| ● | the price at which the holders may be able to sell their Notes. |
Neither CF&Co, nor any
of our other affiliates, has any obligation to make a market in our Notes, and CF&Co
or any such other affiliate may discontinue market-making activities at any time without notice. The trading market for and the
future market prices of the Notes will depend on many factors, including prevailing interest rates, our credit ratings and associated
outlooks published by the rating agencies that rate our indebtedness, the market for similar securities and our operating performance
and financial condition. If an active trading market for the Notes does exist, there is no assurance that it will continue. If an active
trading market for the Notes does not exist or does not continue, the market price and liquidity of the Notes are likely to be adversely
affected, and Notes traded after their purchase may trade at a discount from their purchase price.
We may not be able to repurchase the Notes
upon a Change of Control Triggering Event.
Upon the occurrence of a Change
of Control Triggering Event, unless we have exercised our right to redeem the Notes as described under “Description of the Notes—Optional
Redemption,” holders of Notes will have the right to require us to repurchase all or any part of their Notes at a price in cash
equal to 101% of the then-outstanding aggregate principal amount of the Notes repurchased plus accrued and unpaid interest, if any, on
the Notes repurchased, to, but excluding, the date of purchase. If we experience a Change of Control Triggering Event, we can offer no
assurance that we would have sufficient financial resources available to satisfy our obligations to repurchase any or all of the Notes
should any holder elect to cause us to do so. Our failure to repurchase the Notes as required would result in a default under the indenture,
which in turn could result in defaults under agreements governing certain of our other indebtedness, including the acceleration of the
payment of any borrowings thereunder, and have material adverse consequences for us and the holders of the Notes.
USE OF PROCEEDS
We will not receive any of
the proceeds from the market-making activities in our Notes by CF&Co or any of our other affiliates pursuant to this prospectus.
DESCRIPTION OF THE NOTES
We issued the Notes under
an indenture, dated as of November 6, 2018, as supplemented by the second supplemental indenture thereto, dated as of January 12, 2024
(collectively, the “indenture”), between us and Regions Bank, as trustee (the “Trustee”). The aforementioned indenture
and supplemental indenture have been filed as exhibits to the registration statement of which this prospectus is a part. The statements
made in this section relating to the Notes are summaries of the material provisions thereof and do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the provisions of the Notes and the indenture. You should read
these documents carefully to fully understand the terms and conditions of the Notes because they, and not this description, define your
rights as holders of the Notes.
Capitalized terms used
but not otherwise defined herein shall have the meanings given to them in the Notes or indenture, as applicable. In this description,
the terms the “Company,” “we,” “us” and “our” refer only to Newmark Group, Inc. and not
to any of its subsidiaries.
The registered holder of
a Note will be treated as the owner of it for all purposes. Only registered holders will have rights under the indenture.
General
The Notes are our senior unsecured
obligations and rank equally in right of payment with all of our other senior unsecured indebtedness from time to time outstanding. The
Notes will mature on January 12, 2029, unless previously redeemed or repurchased in full by us as provided below under “—Optional
Redemption” or “—Offer to Repurchase Upon a Change of Control Triggering Event.”
The Notes bear interest at
the rate of 7.500% per annum from January 12, 2024, to the stated maturity or date of earlier redemption. Interest on the Notes is payable
semi-annually in arrears on each January 12 and July 12 to the persons in whose names such Notes are registered at the close of business
on the immediately preceding December 28 and June 27 (whether or not a business day), respectively. The interest rate payable on the Notes
is subject to adjustment from time to time based on the debt ratings assigned to the notes by specific Rating Agencies (as defined in
“—Offer to Repurchase Upon a Change of Control Triggering Event”). See “—Interest Rate Adjustment Based
on Rating Events.”
Interest payments in respect
of the Notes will equal the amount of interest accrued from and including the immediately preceding interest payment date in respect of
which interest has been paid or duly provided for (or from and including the date of issue, if no interest has been paid or duly provided
for with respect to the Notes), to, but excluding, the applicable interest payment date or stated maturity date or date of early redemption,
as the case may be. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. The principal
and interest (including any additional interest), if any, on the Notes will be payable through The Depository Trust Company (the “Depository”),
as described under “—Book-Entry System” and “—Same-Day Funds Settlement and Payment.”
If an interest payment date
or the stated maturity date or date of early redemption of the Notes falls on a Saturday, Sunday or other day on which banking institutions
in The City of New York or place of payment are authorized or obligated by law or executive order to close, the required payment due on
such date will instead be made on the next business day. No further interest will accrue as a result of such delayed payment.
We issued the Notes initially
in an aggregate principal amount of $600.0 million. The indenture does not limit the aggregate principal amount of the debt securities
which we may issue thereunder and provides that we may issue debt securities thereunder from time to time in one or more series. We may,
from time to time, without the consent of or notice to holders of the Notes, issue and sell additional debt securities ranking equally
and ratably with the Notes in all respects and having the same terms as the Notes (other than the issue date, and to the extent applicable,
issue price, initial date of interest accrual and initial interest payment date of such additional debt securities), so that such additional
debt securities shall be consolidated and form a single series with the Notes for all purposes, including voting; provided, that such
additional debt securities are fungible with the previously issued Notes for U.S. federal income tax purposes.
We agreed in the indenture
to use an amount equivalent to the net proceeds from the initial offering of the Notes (after deducting the initial purchasers’
discount and expenses payable by us in connection with the initial offering of the Notes) to make loans to our subsidiaries pursuant to
one or more promissory notes. So long as the Notes are outstanding, (1) the aggregate principal amount of all such promissory notes shall
be not less than the amount of the net proceeds from the initial offering of the Notes (or if less, the aggregate principal amount of
Notes then outstanding), (2) such promissory notes shall bear interest at rates that shall not be less than that borne by the Notes and
(3) such promissory notes shall have terms not later than the stated maturity date of the Notes; provided, that any transfer of such obligation
from one subsidiary to another or any refinancing of any such obligation by another subsidiary shall be permitted from time to time. We
further agreed that, for so long as the Notes remain outstanding, any indebtedness for borrowed money we incur after the date of original
issuance of the Notes in one transaction, or in a series of related transactions, that is in excess of $50.0 million will be subject to
a similar covenant.
The Notes have been issued
only in fully registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
Notes may be presented for transfer (duly endorsed or accompanied by a written instrument of transfer, if so required by us or the security
registrar) or exchanged for other Notes (containing identical terms and provisions, in any authorized denominations, and of a like aggregate
principal amount) at the office or agency maintained by us for such purposes (initially the corporate trust office of the Trustee). Such
transfer or exchange will be made without service charge, but we may require payment of a sum sufficient to cover any tax or other governmental
charge and any other expenses then payable. Prior to the due presentment of a Note for registration of transfer, we, the Trustee and any
other agent of ours or the Trustee may treat the registered holder of each Note as the owner of such Note for the purpose of receiving
payments of principal of and interest on such Note and for all other purposes whatsoever.
The indenture does not contain
any provisions that would limit our ability to incur unsecured indebtedness or that would afford holders of the Notes protection in the
event of a sudden and significant decline in our credit quality or a takeover, recapitalization or highly leveraged or similar transaction
involving us. Accordingly, we could in the future enter into transactions that could increase the amount of indebtedness outstanding at
that time or otherwise affect our capital structure or the credit rating of the Notes.
The Notes are not entitled
to the benefit of any mandatory redemption or sinking fund.
Optional Redemption
The Notes may be redeemed
in whole at any time or in part from time to time, at our option, on not less than 10 days’ nor more than 60 days’ notice
prior to the date fixed for redemption. Any redemption notice given in respect of a redemption may be subject to the satisfaction of one
or more conditions precedent set forth in the notice of redemption.
If the Notes are redeemed
prior to the date that is one month prior to the stated maturity date for the Notes (the “Par Call Date”), the redemption
price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes to be redeemed will be equal to
the greater of (i) 100% of the aggregate principal amount of the Notes to be redeemed or (ii) (a) the sum of the present values of the
remaining scheduled payments of principal of the Notes to be redeemed and interest thereon discounted to the redemption date (assuming
the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined below) plus 50 basis points less (b) interest accrued to the redemption date, plus, in either case, accrued and unpaid
interest thereon to, but excluding, the redemption date.
On or after the Par Call Date,
we may redeem the Notes, in whole or in part at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus
accrued and unpaid interest thereon to, but excluding, the redemption date.
“Treasury Rate”
means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
The Treasury Rate shall be
determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily
by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield
or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board
of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities – Treasury constant maturities
– Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall
select, as applicable:
| (1) | the yield for the Treasury constant maturity on H.15 exactly
equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or |
| (2) | if there is no such Treasury constant maturity on H.15 exactly
equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter
than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall
interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result
to three decimal places; or |
| (3) | if there is no such Treasury constant maturity on H.15 shorter
than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For
purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal
to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date. |
If on the third business day
preceding the redemption date H.15 TCM is no longer published, or, if published, no longer contains the yields for nominal Treasury constant
maturities, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity
at 11:00 a.m., New York City time, on the second business day preceding such redemption date as follows:
| (1) | the Company shall select (a) the United States Treasury security
maturing on the Par Call Date, subject to clause (3) below, or (b) if there is no United States Treasury security maturing on the Par
Call Date, then the United States Treasury security with the maturity date that is closest to the Par Call Date, subject to clauses (2)
and (3) below, as applicable; or |
| (2) | if there is no United States Treasury security described in
clause (1), but there are two or more United States Treasury securities with maturity dates equally distant from the Par Call Date, one
or more with maturity dates preceding the Par Call Date and one or more with maturity dates following the Par Call Date, the Company
shall select the United States Treasury security with a maturity date preceding and closest to the Par Call Date, subject to clause (3)
below; or |
| (3) | if there are two or more United States Treasury securities
meeting the criteria of the preceding clauses (1) or (2), the Company shall select from among these two or more United States Treasury
securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for
such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms
of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average
of the bid and asked prices of such United States Treasury security (expressed as a percentage of principal amount and rounded to three
decimal places) at 11:00 a.m., New York City time. |
Our actions and determinations
in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
The redemption price will
be quoted to the Trustee in writing and the Trustee shall have no duty to determine or verify the calculation of, the redemption price
or any component thereof.
Offer to Repurchase Upon a Change of Control
Triggering Event
If a Change of Control Triggering
Event occurs, unless we have exercised our right to redeem the Notes as described above, holders of Notes will have the right to require
us to repurchase all or any part (in minimum original principal amounts of $2,000 and integral multiples of $1,000 in excess thereof)
of their Notes pursuant to the offer described below (the “Change of Control Offer”) on the terms set forth in the Notes.
In the Change of Control Offer, we will be required to offer payment in cash equal to 101% of the then-outstanding aggregate principal
amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of purchase
(the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, we will be required to
mail a notice to holders of Notes (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of
Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”), pursuant to
the procedures required by the Notes and the indenture and described in such notice. We must comply with the requirements of Rule 14e-1
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change
of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control
Triggering Event provisions of the Notes, we will be required to comply with the applicable securities laws and regulations and will not
be deemed to have breached our obligations under the Change of Control Triggering Event provisions of the Notes by virtue of such conflicts.
On the Change of Control Payment
Date, we will be required, to the extent lawful, to:
| ● | accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer; |
| ● | deposit with the Trustee an amount equal to the Change of Control Payment in respect of all Notes or portions
of Notes properly tendered; and |
| ● | deliver or cause to be delivered to the Trustee the Notes properly accepted together with a certificate
executed by us, stating the aggregate principal amount of Notes or portions of Notes being purchased. |
We will not be required to
make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the
manner, at the times, and otherwise in compliance with the requirements for a Change of Control Offer made by us and the third party repurchases
all Notes properly tendered and not withdrawn under its offer. In addition, we will not repurchase any Notes if there has occurred and
is continuing on the Change of Control Payment Date an event of default under the indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The change of control feature
of the Notes may in certain circumstances make more difficult or discourage a sale or takeover of us and, thus, the removal of incumbent
management. We could, in the future, enter into certain transactions, including acquisitions, refinancings, or other recapitalizations,
that would not constitute a Change of Control under the Notes, but that could increase the amount of our indebtedness outstanding at such
time or otherwise affect our capital structure or credit ratings on the Notes.
For purposes of the foregoing
discussion of a repurchase at the option of holders, the following definitions are applicable:
“Below Investment Grade
Rating Event” means that both Rating Agencies (as defined below) shall have ceased to rate the Notes at an Investment Grade Rating
on any date during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Company
of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger
Period will be extended following consummation of a Change of Control for so long as either of the Rating Agencies has publicly announced
that it is considering a possible ratings change). If a Rating Agency is not providing a rating for the Notes at the commencement of any
Trigger Period, the Notes will be deemed to have ceased to be rated an Investment Grade Rating by such Rating Agency during that Trigger
Period.
A “Change of Control”
will be deemed to have occurred at such time after the original issuance of the Notes when any of the following has occurred:
| (1) | a “person” or “group” within the meaning of Section 13(d) of the Exchange Act
other than us, our subsidiaries, our and their respective employee benefit plans and any Permitted Holder, has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of our capital stock representing, in the aggregate,
more than 50% of the voting power of all classes of our capital stock; or |
| (2) | our liquidation or dissolution or the stockholders of the Company approve any plan or proposal for our
liquidation or dissolution; or |
| (3) | any conveyance, transfer, sale, lease or other disposition
of all or substantially all of the properties and assets of ours to another Person, other than: |
| (i) | that does not result in any reclassification, conversion, exchange or cancellation of our outstanding
equity interests; or |
| (ii) | pursuant to which holders of our outstanding equity interests, immediately prior to the transaction, have
the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all equity interests entitled to vote generally
in elections of directors or managers of the continuing or surviving or successor entity immediately after giving effect to such issuance;
or |
| (iii) | any transfer of assets or similar transaction solely for the purpose of changing our jurisdiction of organization
and resulting in a reclassification, conversion or exchange of our outstanding equity interests, if at all, solely into outstanding equity
interests of the surviving entity or a direct or indirect parent of the surviving entity; or |
| (iv) | any conveyance, transfer, sale, lease or other disposition with or into any of our subsidiaries, so long
as such conveyance, transfer, sale, lease or other disposition is not part of a plan or a series of transactions designed to or having
the effect of merging or consolidating with, or conveying, transferring, selling, leasing or disposing all or substantially all our properties
and assets to, any other Person. |
Notwithstanding the foregoing,
no Change of Control will be deemed to have occurred in the event any successor issuer of the Notes shall be a corporation so long as
one or more Permitted Holders shall maintain the beneficial ownership of shares of the capital stock of such successor possessing the
voting power under normal circumstances to elect, or one or more Permitted Holders shall have the contractual right to elect, a majority
of the directors of such successor corporation. Notwithstanding the foregoing, a transaction will not be deemed to result in a Change
of Control if (a) Cantor Fitzgerald, L.P. becomes a wholly owned subsidiary of a holding company and (b) the holders of the voting capital
stock of such holding company immediately following that transaction are substantially the same as the holders of Cantor Fitzgerald, L.P.’s
voting partnership interests immediately prior to that transaction.
“Change of Control Triggering
Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“Fitch” means
Fitch Ratings.
“Investment Grade Rating”
means a rating equal to or higher than BBB- (or the equivalent) by Fitch or BBB- (or the equivalent) by S&P.
“Permitted Holder”
means Howard W. Lutnick, any Person controlled by him or any trust established for Mr. Lutnick’s benefit or for the benefit of his
spouse, any of his descendants or any of his relatives, in each case, so long as he is alive and, upon his death or incapacity, any person
who shall, as a result of Mr. Lutnick’s death or incapacity, become a “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act) of the Company’s capital stock by operation of a trust, by will or the laws of descent and distribution or by
operation of law.
“Person” means
an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust,
an unincorporated organization or a government or agency or political subdivision thereof.
“Rating Agencies”
means (1) each of Fitch and S&P; and (2) if either of Fitch or S&P ceases to rate the Notes or fails to make a rating of the Notes
publicly available for reasons outside of our control, a “nationally recognized statistical rating organization” within the
meaning of Section 3(a)(62) of the Exchange Act, selected by us (as certified by a resolution of our Board of Directors) as a replacement
agency for Fitch or S&P, or both of them, as the case may be.
“S&P” means
S&P Global Ratings, a division of S&P Global Inc.
Interest Rate Adjustment Based on Rating Events
The interest rate payable on the Notes will be
subject to adjustments from time to time if either S&P or Fitch or, if either of S&P or Fitch ceases to rate the Notes or fails
to make a rating of the Notes publicly available, in each case for reasons outside of the control of the Company, a “nationally
recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected pursuant to the
definition of “Rating Agencies” herein (a “substitute Rating Agency”), downgrades (or downgrades and subsequently
upgrades) the credit rating assigned to the Notes, in the manner described below.
If the rating assigned by S&P (or any substitute
Rating Agency therefor) of the Notes is decreased to a rating set forth in the immediately following table, the interest rate on the Notes
will increase such that it will equal the interest rate payable on the Notes on the date of their initial issuance plus the percentage
set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table under
“—Fitch Rating Percentage”):
S&P Rating* | |
Percentage | |
BB | |
| 0.25 | % |
BB- | |
| 0.50 | % |
B+ | |
| 0.75 | % |
B or below | |
| 1.00 | % |
| * | Including the equivalent ratings of any substitute Rating Agency. |
If the rating assigned by Fitch (or any substitute
Rating Agency therefor) of the Notes is decreased to a rating set forth in the immediately following table, the interest rate on the Notes
will increase such that it will equal the interest rate payable on the Notes on the date of their initial issuance plus the percentage
set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table under
“—S&P Rating Percentage”):
Fitch Rating* | |
Percentage | |
BB+ | |
| 0.25 | % |
BB | |
| 0.50 | % |
BB- | |
| 0.75 | % |
B+ or below | |
| 1.00 | % |
| * | Including the equivalent ratings of any substitute Rating Agency. |
If at any time the interest rate on the Notes has
been increased and either S&P or Fitch (or, in either case, a substitute Rating Agency therefor), as the case may be, subsequently
upgrades its rating of the Notes to any of the threshold ratings set forth above, the interest rate on the Notes will be decreased such
that the interest rate for the Notes equals the interest rate payable on the Notes on the date of their initial issuance plus the percentages
set forth opposite the ratings from the tables above in effect immediately following the upgrade in rating. If S&P (or any substitute
Rating Agency therefor) subsequently upgrades its rating of the Notes to BB+ (or its equivalent, in the case of a substitute Rating Agency)
or higher, and Fitch (or any substitute Rating Agency therefor) upgrades its rating to BBB- (or its equivalent, in the case of a substitute
Rating Agency) or higher, the interest rate on the Notes will be decreased to the interest rate payable on the Notes on the date of their
initial issuance (and if one such upgrade occurs and the other does not, the interest rate on the Notes will be decreased so that it does
not reflect any increase attributable to the upgrading Rating Agency). In addition, the interest rates on the Notes will permanently cease
to be subject to any adjustment described above (notwithstanding any subsequent downgrade in the ratings by either or both Rating Agencies)
if the Notes become rated BBB+ (or, in either case, the equivalent thereof, in the case of a substitute Rating Agency) or higher by S&P
and Fitch (or, in either case, a substitute Rating Agency therefor), respectively (or one of these ratings if the Notes are only rated
by one Rating Agency).
Each adjustment required by any downgrade or upgrade
in a rating set forth above, whether occasioned by the action of S&P or Fitch (or, in either case, a substitute Rating Agency therefor),
shall be made independent of any and all other adjustments. In no event shall (1) the interest rate for the Notes be reduced to below
the interest rate payable on the Notes on the date of their initial issuance or (2) the total increase in the interest rate on the Notes
exceed 2.00% above the interest rate payable on the Notes on the date of their initial issuance.
No adjustments in the interest rate of the Notes
shall be made solely as a result of a Rating Agency ceasing to provide a rating of the Notes. If at any time S&P or Fitch ceases to
provide a rating of the Notes, we will use our commercially reasonable efforts to obtain a rating of the Notes from a substitute Rating
Agency, if one exists, in which case, for purposes of determining any increase or decrease in the interest rate on the Notes pursuant
to the tables above (a) such substitute Rating Agency will be substituted for the last Rating Agency to provide a rating of the Notes
but which has since ceased to provide such rating, (b) the relative rating scale used by such substitute Rating Agency to assign ratings
to senior unsecured debt will be determined in good faith by an independent investment banking institution of national standing appointed
by us and, for purposes of determining the applicable ratings included in the applicable table above with respect to such substitute Rating
Agency, such ratings will be deemed to be the equivalent ratings used by S&P or Fitch, as applicable, in such table and (c) the interest
rate on the Notes will increase or decrease, as the case may be, such that the interest rate equals the interest rate payable on the Notes
on the date of their initial issuance plus the appropriate percentage, if any, set forth opposite the deemed equivalent rating from such
substitute Rating Agency in the applicable table above (taking into account the provisions of clause (b) above) (plus any applicable percentage
resulting from a decreased rating by the other Rating Agency).
For so long as only one Rating Agency provides
a rating of the Notes, any subsequent increase or decrease in the interest rate of the Notes necessitated by a reduction or increase in
the rating by the Rating Agency providing the rating shall be twice the applicable percentage set forth in the applicable table above.
For so long as neither S&P nor Fitch (nor, in either case, a substitute Rating Agency therefor) provides a rating of the Notes, the
interest rate on the Notes will increase to, or remain at, as the case may be, 2.00% above the interest rate payable on the Notes on the
date of their initial issuance.
Any interest rate increase or decrease described
above will take effect from the first interest payment date following the date on which a rating change occurs that requires an adjustment
in the interest rate. As such, interest will not accrue at such increased or decreased rate until the next interest payment date following
the date on which a rating change occurs. If S&P or Fitch (or, in either case, a substitute Rating Agency therefor) changes its rating
of the Notes more than once prior to any particular interest payment date, the last change by such agency prior to such interest payment
date will control for purposes of any interest rate increase or decrease with respect to the Notes described above relating to such Rating
Agency’s action. If the interest rate payable on the Notes is increased as described above, the term “interest,” as
used with respect to the Notes, will be deemed to include any such additional interest unless the context otherwise requires.
We will notify the Trustee and the holders in writing
of any occurrence of a rating change that requires an interest rate increase or decrease described above.
Certain Covenants
Limitations on Liens on Stock of Subsidiaries
Under the indenture, we covenant that, so long
as any of the Notes are outstanding, we will not, and we will not permit any Designated Subsidiary to, create, assume, incur, guarantee
or otherwise permit to exist any Indebtedness secured by any mortgage, pledge, lien, security interest or other encumbrance (a “Lien”)
upon any shares of capital stock of any Designated Subsidiary directly or indirectly held by us (whether such capital stock is now owned
or hereafter acquired) without effectively providing concurrently that the Notes (and, if we so elect, any other Indebtedness of ours
that is not subordinate to the Notes and with respect to which the governing instruments of such Indebtedness require us, or pursuant
to which we are otherwise obligated, to provide such security) will be secured equally and ratably with, or prior to, such Indebtedness
for at least the time period such other Indebtedness is so secured. The foregoing will not apply to Liens on the securities of any entity
existing at the time it becomes a Designated Subsidiary (and any extensions, renewals or replacements thereof).
For purposes of the indenture, “capital stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, including preferred stock, but excluding any debt securities convertible into such equity.
The term “Designated Subsidiary” means
each of (i) Newmark Holdings, L.P., (ii) Newmark & Company Real Estate, Inc., (iii) Newmark Partners, L.P., and (iv) any other direct
or indirect subsidiary now owned or hereafter acquired by us for which (a) the Net Assets constitute, as of the last day of the most recently
ended fiscal quarter, 5% or more of our Total Stockholders’ Equity or (b) the net revenues constitute, as of the last day of the
most recently ended fiscal quarter, 10% or more of the consolidated net revenues of ours during the most recently ended period of four
consecutive fiscal quarters; provided, however, that the following shall not be Designated Subsidiaries:
| (1) | any Person in which the Company or any of its subsidiaries
does not own sufficient equity or voting interests to elect a majority of the directors (or persons performing similar functions); |
| (2) | any Person whose financial results would not be consolidated
with those of the Company and its consolidated subsidiaries in accordance with accounting principles generally accepted in the United
States of America (“U.S. GAAP”); |
| (3) | any Person which is a subsidiary of a Company subsidiary,
the common equity of which is registered under Section 12(b) or 12(g) of the Exchange Act; or |
| (4) | any subsidiary of any Person described in clauses (1), (2)
or (3) above. |
The term “Indebtedness” means, without
duplication, with respect to any Person, whether or not contingent:
| (1) | the principal of and any premium and interest on (a) indebtedness
of such Person for money borrowed or (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment
of which such Person is responsible or liable; |
| (2) | all capitalized lease obligations of such Person; |
| (3) | all obligations of such Person incurred or assumed as the
deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business); |
| (4) | all obligations of such Person for the reimbursement of any
obligor on any banker’s acceptance, bank guarantees, surety bonds or similar credit transaction; and |
| (5) | any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clauses (1) through (4) above; |
if and to the extent any of the preceding items (other than letters
of credit) would appear as a liability upon a balance sheet of such Person prepared in accordance with U.S. GAAP; provided, however, the
term “Indebtedness” includes all of the following items, whether or not any such items would appear as a liability on a balance
sheet of such Person prepared in accordance with U.S. GAAP:
| (i) | all Indebtedness of others secured by any Lien on any property
or asset of such Person (whether or not such Indebtedness is assumed by such Person); |
| (ii) | to the extent not otherwise included, any guarantee by such
Person of Indebtedness of any other Person; and |
| (iii) | preferred stock or other equity interests providing for mandatory
redemption or sinking fund or similar payments issued by any subsidiary of such Person. |
The term “Net Assets” means, with respect
to any Person, the excess (if positive) of (a) such Person’s consolidated assets over (b) such Person’s consolidated liabilities,
in each case determined in accordance with U.S. GAAP.
The term “Total Stockholders’ Equity”
means, as of the date of determination, without duplication, all items which in conformity with U.S. GAAP would be included under total
stockholders’ equity on our consolidated statement of financial condition. For purposes of any determination of total stockholders’
equity, we may include the amount of any capital to be returned pursuant to the terms of the Agreement of Limited Partnership of Newmark
Holdings, L.P., as amended from time to time (the “Partnership Agreement”), to any limited or general partner who has been
terminated or withdrawn until such time as the amount of such partner’s capital has been paid to such limited or general partner
pursuant to the terms of the Partnership Agreement plus, without duplication, redeemable partnership interests representing former partner’s
equity in us. For the avoidance of doubt, Total Stockholders’ Equity is inclusive of noncontrolling interests in subsidiaries on
our consolidated statement of financial condition.
Consolidation, Merger or Sale
We may not consolidate or
merge with or into, or transfer or lease all or substantially all of our assets to, any Person unless either (a) we will be the continuing
entity or (b) the successor entity or Person to which our assets are transferred or leased is an entity organized under the laws of the
United States, any state of the United States or the District of Columbia and it expressly assumes our obligations on the Notes and under
the indenture. In addition, we cannot effect such a transaction unless immediately after giving effect to such transaction, no default
or event of default under the indenture shall have occurred and be continuing. Subject to certain exceptions, when the Person to whom
our assets are transferred or leased has assumed our obligations under the Notes and the indenture, we will be discharged from all our
obligations under the Notes and the indenture, except in limited circumstances.
This covenant does not apply
to any recapitalization transaction, a change of control of us or a highly leveraged transaction, unless the transaction or change of
control is structured to include a merger or consolidation or transfer or lease of all or substantially all of our assets.
Modification, Amendment or Waiver
We may, from time to time,
amend or supplement the indenture and the Notes without the consent of registered holders to, among other things, (i) modify the restrictions
on and procedures for resale, attempted resale, and other transfers of the Notes or interests therein to reflect any change in applicable
law or regulation (or interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally or
(ii) cure any ambiguity, omission, mistake or defect, correct or supplement any provision of the indenture or any Note that may be inconsistent
with any other provision in the indenture or the Notes; provided, however, that any such cure, correction, supplement or other change
shall not adversely affect the interests of the holders of the Notes in any material respect.
With certain exceptions, we
may make modifications and amendments of the indenture with the consent of the registered holders of not less than a majority in aggregate
principal amount of the notes of a series at the time outstanding under the indenture. Compliance with certain covenants may be waived
on behalf of registered holders of notes of a series, either generally or in a specific instance and either before or after the time for
compliance with those covenants, with the consent of holders of not less than a majority in aggregate principal amount of the then-outstanding
notes of such series. Nevertheless, without the consent of each registered holder of the Notes affected thereby, no such modification
or amendment may, among other things, reduce the principal of or interest on any of the outstanding Notes, extend the stated maturity
of the Notes, change the interest payment dates or terms of payment for the Notes, or reduce the percentage of registered holders necessary
to modify or amend the indenture and the Notes.
Events of Default
Unless otherwise indicated,
the term “Event of Default,” when used in the indenture with respect to the Notes means any of the following:
| ● | failure to pay interest (including any additional interest)
for 30 days after the date payment on any Note is due and payable; |
| ● | failure to pay principal or premium, if any, on any Note when
due, either at maturity, upon any redemption, by declaration or otherwise; |
| ● | a default by us in the payment in respect of any Indebtedness
for borrowed money, including obligations evidenced by any mortgage, indenture, bond, debenture, note, guarantee or similar instrument,
in an aggregate principal amount of at least $100 million beyond any applicable grace period, or default in the performance or compliance
with any term respecting such debt, if as a consequence such debt becomes due and payable before its stated maturity, and such default
shall not have been rescinded or annulled or such Indebtedness shall not have been discharged and such default continues for a period
of 30 consecutive days after written notice to us by the Trustee or the holders of not less than 25% in aggregate principal amount of
the Notes; |
| ● | failure by us to perform any other covenant in the indenture
or the Notes (“other covenants”) for 90 days after notice that performance was required; or |
| ● | events related to our bankruptcy, insolvency, reorganization
or liquidation. |
If an Event of Default relating
to the payment of interest (including any additional interest) or principal with respect to the Notes has occurred and is continuing,
the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes may declare the entire principal of the Notes
to be due and payable immediately.
If an Event of Default relating
to the performance of other covenants occurs and is continuing, then the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes may declare the entire principal amount of the Notes to be due and payable immediately.
The holders of not less than
a majority in aggregate principal amount of the Notes may, after satisfying the applicable conditions, rescind and annul any of the above-described
declarations and consequences.
If an Event of Default relating
to events of our bankruptcy, insolvency, reorganization or liquidation occurs and is continuing, then the principal amount of the Notes
outstanding, and any accrued interest, will automatically become due and payable immediately, without any declaration or other act by
the Trustee or any holder.
The indenture imposes limitations
on suits brought by holders of Notes against us. Except as provided below, no holder of Notes may institute any action against us under
the indenture unless:
| ● | the holder has previously given to the Trustee written notice of default and continuance of that default; |
| ● | the holders of at least 25% in principal amount of the Notes have requested in writing that the Trustee
institute the action; |
| ● | the requesting holders have offered the Trustee security or indemnity satisfactory to it for expenses
and liabilities that may be incurred by bringing the action; |
| ● | the Trustee has not instituted the action within 60 days after the request; and |
| ● | the Trustee has not received inconsistent direction by the holders of a majority in principal amount of
the outstanding Notes. |
Notwithstanding the foregoing,
each holder of notes of any series has the right, which is absolute and unconditional, to receive payment of the principal of, and premium
and interest, if any, on, such notes when due and to institute suit for the enforcement of any such payment, and such rights may not be
impaired without the consent of that holder of notes.
We will be required to file
annually with the Trustee a certificate, signed by an officer of the Company, stating whether or not the officer knows of any default
by us in the performance, observance or fulfillment of any condition or covenant of the indenture.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease
our obligations under the indenture and the Notes as set forth below.
We may discharge our obligations
to holders of Notes that have not already been delivered to the Trustee for cancellation and that have become due and payable within one
year (or are scheduled for redemption within one year). We may effect a discharge by irrevocably depositing with the Trustee cash or U.S.
government obligations, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon redemption
or otherwise, the principal of, and premium, if any, and interest on, the Notes.
We may also discharge any
and all of our obligations to holders of Notes at any time (“legal defeasance”). We also may be released from the obligations
imposed by any covenants of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with
those covenants without creating an Event of Default (“covenant defeasance”). We may effect legal defeasance and covenant
defeasance only if, among other things:
| ● | we irrevocably deposit with the Trustee cash or U.S. government obligations, as trust funds, in an amount
certified to be sufficient to pay when due (whether at maturity, upon redemption, or otherwise) the principal of, and premium, if any,
and interest on all outstanding Notes; and |
| ● | we deliver to the Trustee an opinion of counsel from a nationally recognized law firm to the effect that
the holders and beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result
of the legal defeasance or covenant defeasance and that legal defeasance or covenant defeasance will not otherwise alter the holders’
and beneficial owners’ U.S. federal income tax treatment of principal, premium, if any, and interest payments on the Notes, which
opinion, in the case of legal defeasance, must be based on a ruling of the Internal Revenue Service or a change in U.S. federal income
tax law issued or pronounced after the date of this prospectus. |
Although we may discharge
or defease our obligations under the indenture as described in the two preceding paragraphs, we may not avoid, among other things, our
duty to register the transfer or exchange of any Notes, to replace any temporary, mutilated, destroyed, lost or stolen Notes or to maintain
an office or agency in respect of the Notes or any of our other obligations that expressly survive any defeasance or termination.
Book-Entry System
The certificates representing
the Notes have been issued in the form of one or more fully-registered global notes without coupons (collectively, the “Global Note”)
and have been deposited with, or on behalf of, the Depository and registered in the name of Cede & Co., as the nominee of the Depository.
Except in limited circumstances, the Notes are not issuable in definitive form. Unless and until they are exchanged in whole or in part
for the individual Notes represented thereby, any interests in a Global Note may not be transferred except as a whole by the Depository
to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository
or any nominee of the Depository to a successor depository or any nominee of such successor.
The Depository is under no
obligation to provide its services as depositary for the certificates of any series of notes and may discontinue providing its services
at any time. Neither we nor the Trustee will have any responsibility for the performance by the Depository or its direct or indirect participants
under the rules and procedures governing the Depository. As noted above, owners of beneficial interests in the Global Note will not receive
certificates representing their interests. However, we will prepare and deliver certificates for the notes of that series in exchange
for beneficial interests in the Global Note if:
| ● | the Depository notifies us that it is unwilling or unable to continue as a depositary for the Global Note
of any series or if the Depository ceases to be a clearing agency registered under the Exchange Act and a successor depositary is not
appointed by us within 90 days after the notification or of our becoming aware of the Depository’s ceasing to be so registered,
as the case may be; |
| ● | we determine, in our sole discretion, not to have the notes of any series represented by one or more Global
Notes; or |
| ● | an Event of Default has occurred and is continuing with respect to the debt securities of any series,
and the Depository wishes to exchange such Global Notes for definitive certificated debt securities. |
Any beneficial interest in
a Global Note that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for Notes in definitive
certificated form registered in the names that the depositary shall direct. It is expected that these directions will be based upon directions
received by the depositary from its participants with respect to ownership of beneficial interests in the Global Note.
The Depository has advised
us that the Depository is a limited-purpose trust company organized under the New York Banking Law, a “banking organization”
within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the
meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section
17A of the Exchange Act. The Depository holds securities that its participants (“Direct Participants”) deposit with the Depository.
The Depository also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited
securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates
the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other organizations. The Depository is a wholly owned subsidiary of The Depository
Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for the Depository, National Securities Clearing Corporation
and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries.
Access to the Depository system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly
or indirectly.
Conveyance of notices and
other communications by the Depository to Direct Participants, by Direct Participants to indirect participants and by direct and indirect
participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to
time.
Redemption notices shall be
sent to the Depository or its nominee. If less than all of the Notes are being redeemed, the Depository will reduce the amount of the
interest of Direct Participants in such Notes in accordance with its procedures.
A beneficial owner of Notes
shall give written notice to elect to have its Notes repurchased or tendered, through its participant, to the Trustee and shall effect
delivery of such Notes by causing the Direct Participant to transfer the participant’s interest in such Notes, on the Depository’s
records, to the Trustee. The requirement for physical delivery of Notes in connection with a repurchase or tender will be deemed satisfied
when the ownership rights in such Notes are transferred by Direct Participants on the Depository’s records and followed by a book-entry
credit of such Notes to the Trustee’s Depository account.
In any case where a vote may
be required with respect to the notes of any series, neither the Depository nor Cede & Co. will give consents for or vote such global
debt securities. Under its usual procedures, the Depository will mail an omnibus proxy to us as soon as possible after the record date.
The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those Direct Participants to whose accounts the Notes are
credited on the record date identified in a listing attached to the omnibus proxy.
The principal of, and premium,
if any, and interest, if any, on the Global Note will be paid to Cede & Co., as nominee of the Depository. The Depository’s
practice is to credit Direct Participants’ accounts on the relevant payment date unless the Depository has reason to believe that
it will not receive payments on the payment date. Payments by direct and indirect participants to beneficial owners will be governed by
standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered
in “street name.” Those payments will be the responsibility of participants and not of the Depository or us, subject to any
legal requirements in effect from time to time. Payment of principal, premium, if any, and interest, if any, to Cede & Co. is our
responsibility, disbursement of payments to Direct Participants is the responsibility of the Depository, and disbursement of payments
to the beneficial owners is the responsibility of direct and indirect participants.
The rules applicable to the
Depository and its Direct Participants are on file with the SEC. The information in this section concerning the Depository and the Depository’s
book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
Same-Day Funds Settlement and Payment
All payments of principal,
premium if any, and interest in respect of Notes in book-entry form will be made by us in immediately available funds to the accounts
specified by the Depository.
Governing Law
The indenture and the Notes
are governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made or instruments entered
into and, in each case, performed in that state.
Concerning the Trustee
Regions Bank is the Trustee
under the indenture with respect to the Notes and also serves as the registrar and paying agent. We maintain relationships in the ordinary
course of business with the Trustee.
PLAN OF DISTRIBUTION
This prospectus may be used
by CF&Co, our affiliate, in connection with offers and sales of the Notes in market-making transactions in the Notes. Market-making
transactions may occur in the open market or may be privately negotiated at prevailing market prices at the time of sale or at related
or negotiated prices. In these transactions, CF&Co may act as principal or agent, including as agent for the counterparty in a transaction
in which CF&Co acts as principal, or as agent for both counterparties in a transaction in which CF&Co does not act as principal.
CF&Co may receive compensation in the form of discounts and commissions, including from both counterparties in some cases. Other
affiliates of ours may also engage in market-making transactions of this kind and may use this prospectus for that purpose. CF&Co,
or any of our other affiliates, will conduct these offers and sales in compliance with the requirements of the Financial Industry Regulatory
Authority, which we refer to as “FINRA,” including FINRA Rule 5121, regarding a FINRA member firm’s offers and sales
of securities of an affiliate and related conflicts of interest. CF&Co, or any of our other affiliates, may not make sales to any
discretionary account pursuant to this prospectus unless it has received prior specific written approval of the transaction from the
discretionary account holder.
This market-making prospectus
will cover the $125.0 million aggregate principal amount of Notes (Cusip No. 65158N AC6) acquired by our controlling stockholder, Cantor
Fitzgerald, L.P., which we refer to as “Cantor,” in the initial offering of such Notes once such Notes have been resold pursuant to the
resale registration statement on Form S-3, filed with the SEC on August 8, 2024, to non-affiliates of Cantor and us, or otherwise become
freely tradable in the hands of transferees.
The Notes in the aggregate principal amount of $404,000 that were acquired from us in the initial offering of such Notes and not tendered
to us by the holders thereof in our exchange offer registered on Form S-4 which expired July 17, 2024 (as of settlement of the exchange
offer, comprised of $24,000 under Cusip No. U64797 AB6 and $380,000 under Cusip No. 65158N AC6) will be covered by this market-making
prospectus only after they are freely tradable in the hands of the holder.
We will not receive any proceeds
from these market-making transactions.
Information about the trade
and settlement dates, as well as the purchase price, for a market-making transaction will be provided to the purchaser in a separate
confirmation of sale.
Neither CF&Co, nor any
of our other affiliates, has any obligation to make a market in the Notes, and CF&Co, or any such other affiliate, may discontinue
market-making activities at any time without notice.
LEGAL MATTERS
The validity of the Notes
offered and sold pursuant to this prospectus has been passed upon for us by Morgan, Lewis & Bockius LLP, Washington, District of
Columbia.
EXPERTS
The consolidated financial
statements of Newmark Group, Inc. appearing in Newmark Group, Inc.’s Annual Report (Form 10-K) for the year ended December 31,
2023, and the effectiveness of Newmark Group, Inc.’s internal control over financial reporting as of December 31, 2023, have been
audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein,
and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such
reports given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. These filings are available to the public from the SEC’s website at www.sec.gov.
Our website address is www.nmrk.com.
Through our website, we make available, free of charge, the following documents as soon as reasonably practicable after they are
electronically filed with, or furnished to, the SEC: our Annual Reports on Form 10-K; our proxy statements for our annual and special
stockholder meetings; our Quarterly Reports on Form 10-Q; our Current Reports on Form 8-K; Forms 3, 4 and 5 and Schedules 13D with respect
to our securities filed on behalf of Cantor, CF Group Management, Inc., the general partner of Cantor, and our directors and our executive
officers; and amendments to those documents. Our website also contains additional information with respect to our industry and businesses.
The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus
(except for SEC filings expressly incorporated herein).
DOCUMENTS INCORPORATED BY REFERENCE
We incorporate by reference
the documents listed below. The information that we incorporate by reference is considered to be part of this prospectus. Specifically,
we incorporate by reference:
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC
on February 29, 2024; |
| ● | our
Amendment No. 1 to the Annual Report on Form 10-K/A for the fiscal year ended December
31, 2023, filed with the SEC on April 26, 2024; |
| ● | our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the
SEC on May 10, 2024; |
| ● | our
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2024, filed with the SEC on August 8, 2024; |
| ● | our Current Reports on
Form 8-K filed with the SEC on January
5, 2024, January 12, 2024, February
22, 2024 (other than as indicated therein), April
30, 2024, May 3, 2024 (other
than as indicated therein), June 10,
2024 and August 2, 2024 (other than as indicated therein); and |
| ● | all
documents filed by us with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this prospectus and before the completion of the offering contemplated
hereby (other than any portions of any such documents that are not deemed “filed”
under the Exchange Act in accordance with the Exchange Act and applicable SEC rules). |
Any
statement contained in this prospectus, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded to the extent that a statement contained herein, or in any subsequently filed document that also is incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may obtain copies of
these documents, at no cost to you, from our website (www.nmrk.com), or by writing or telephoning us at:
Investor Relations
Newmark Group, Inc.
125 Park Avenue
New York, New York 10017
(212) 829-7124
![](https://www.sec.gov/Archives/edgar/data/1690680/000121390024066651/image_001.jpg) |
7.500% Senior Notes due 2029 |
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following table sets
forth the costs and expenses payable in connection with the offering of the securities being registered, all of which will be paid by
Newmark Group, Inc. (the “Registrant”). All amounts are estimates except the Securities and Exchange Commission (the “SEC”)
registration fee.
| |
Amount | |
SEC registration fee | |
$ | 0 | |
Printing and engraving expenses | |
| 1,500 | |
Legal fees and expenses | |
| 40,000 | |
Accounting fees and expenses | |
| 20,000 | |
Trustee fees and expenses | |
| 4,500 | |
Miscellaneous | |
| 4,000 | |
Total | |
$ | 70,000 | |
Item 15. Indemnification of Directors and
Officers.
Section 145 of the Delaware
General Corporation Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is
made a party by reason of such person being or having been a director, officer, employee or agent of the Registrant. The DGCL provides
that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement,
vote of stockholders or disinterested directors or otherwise. The Registrant’s Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws provide for indemnification by the Registrant of its directors and officers to the fullest extent permitted
by the DGCL.
Section 102(b)(7) of the
DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer,
except for liability of (1) a director or officer for any breach of the director’s or officer’s duty of loyalty to the corporation
or its stockholders, (2) a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) a director under Section 174 of the DGCL, (4) a director or officer for any transaction from which the director
or officer derived an improper personal benefit or (5) an officer in any action by or in the right of the corporation. The Registrant’s
Amended and Restated Certificate of Incorporation provides for such limitation of liability for directors of the Registrant to the fullest
extent permitted by the DGCL.
The Registrant maintains
standard policies of insurance under which coverage is provided (1) to its directors and officers against loss arising from claims made
by reason of breach of duty or other wrongful act, while acting in their capacity as directors and officers of the Registrant, and (2)
to the Registrant with respect to payments which may be made by the Registrant to such directors and officers pursuant to any indemnification
provision contained in the Registrant’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws or otherwise
as a matter of law.
Item 16. Exhibits.
The Exhibit Index set forth
below is hereby incorporated by reference in response to this Item 16.
EXHIBIT INDEX
The following exhibits are
included or incorporated by reference in this registration statement on Form S-3:
Exhibit
Number |
|
Exhibit Title |
4.1 |
|
Indenture, dated as of November 6, 2018, by and between Newmark Group, Inc. and Regions Bank, as Trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 8, 2018) |
4.2 |
|
Second Supplemental Indenture, dated as of January 12, 2024, by and between Newmark Group, Inc. and Regions Bank, as Trustee, relating to the 7.500% Senior Notes due 2029 of Newmark Group, Inc. (incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed with the SEC on January 12, 2024) |
4.3 |
|
Form of 7.500% Senior Notes due 2029 (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on January 12, 2024) |
5.1 |
|
Opinion of Morgan, Lewis & Bockius LLP |
23.1 |
|
Consent of Ernst & Young LLP |
23.2 |
|
Consent of Morgan, Lewis & Bockius LLP (included in the opinion filed as Exhibit 5.1) |
24.1 |
|
Power of Attorney (included on the signature page to this registration statement) |
25.1 |
|
Form T-1 Statement of Eligibility, dated as of August 8,
2024, of Regions Bank to act as trustee under the Indenture between Newmark Group, Inc. and Regions Bank, as Trustee |
107 |
|
Filing Fee Table |
Item 17. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that:
Paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, Newmark Group, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in New York, New York on August 8, 2024.
|
NEWMARK GROUP, INC. |
|
|
|
/s/ Howard W. Lutnick |
|
Name: |
Howard W. Lutnick |
|
Title: |
Executive Chairman |
POWER OF ATTORNEY
Each of the undersigned,
whose signature appears below, hereby constitutes and appoints Howard W. Lutnick and Michael J. Rispoli, and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments to this registration statement and to file the same with all
exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, or his, her or their substitute or substitutes, and each of them, full power and authority to do and perform each and every
act and thing necessary or appropriate to be done with respect to this registration statement or any amendments hereto in the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or his, her or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the Registrant,
Newmark Group, Inc., in the capacities and on the date indicated.
Signature |
|
Capacity in Which Signed |
|
Date |
|
|
|
|
|
/s/ Howard W. Lutnick |
|
Executive Chairman (Principal Executive Officer) |
|
August 8, 2024 |
Howard W. Lutnick |
|
|
|
|
|
|
|
|
|
/s/ Michael J. Rispoli |
|
Chief Financial Officer (Principal Financial and |
|
August 8, 2024 |
Michael J. Rispoli |
|
Accounting Officer |
|
|
|
|
|
|
|
/s/ Virginia S. Bauer |
|
Director |
|
August 8, 2024 |
Virginia S. Bauer |
|
|
|
|
|
|
|
|
|
/s/ Kenneth A. McIntyre |
|
Director |
|
August 8, 2024 |
Kenneth A. McIntyre |
|
|
|
|
|
|
|
|
|
/s/ Jay Itzkowitz |
|
Director |
|
August 8, 2024 |
Jay Itzkowitz |
|
|
|
|
II-4
Exhibit 5.1
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue NW
Washington, DC 20004-2541
August 8, 2024
Newmark Group, Inc.
125 Park Avenue
New York, New York 10017
| Re: | Newmark Group, Inc. Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Newmark Group, Inc.,
a Delaware corporation (the “Company”), in connection with the filing of the referenced Registration Statement on Form S-3
(the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), with the
Securities and Exchange Commission (the “SEC”). The Registration Statement relates to the offer and sale of an indeterminate
amount of the Company’s 7.500% Senior Notes due 2029 (Cusip No. 65158N AD4) (the “Notes”) in connection with market-making
transactions in the Notes by affiliates of the Company.
The Notes have been issued pursuant to a base
indenture, dated as of November 6, 2018, as supplemented by a second supplemental indenture, dated as of January 12, 2024 (collectively,
the “Indenture”), between the Company and Regions Bank, as trustee (the “Trustee”).
In connection with this opinion letter, we have
examined originals, or copies certified or otherwise identified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation
of the Company and the Amended and Restated Bylaws of the Company, (ii) the Registration Statement and the prospectus included therein
(the “Prospectus”), (iii) the Indenture, (iv) the Global Note representing the Notes, and (v) such other documents and records
as we have deemed necessary.
We have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies (whether in PDF, another electronic format, or otherwise) and the authenticity of
the originals of all documents submitted to us as copies. With respect to matters of fact relevant to the opinions expressed below, we
have relied upon representations and certificates of officers of the Company and representations made by the Company in documents examined
by us.
We have also assumed for purposes of the opinions
expressed below that the Indenture has been duly authorized, executed and delivered by the Trustee; that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under the Indenture; that the Indenture constitutes a legal,
valid and binding obligation of the Trustee; and that the Indenture will be qualified under the Trust Indenture Act of 1939, as amended,
upon the filing of the Registration Statement.
Based upon the foregoing, we are of the opinion
that each of the Notes constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance
with its terms.
The opinions expressed above are subject to
the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors’ rights or remedies generally, and (ii) general principles of equity
(whether such principles are considered in a proceeding at law or equity), including the discretion of the court before which any
proceeding may be brought, concepts of good faith, reasonableness and fair dealing and standards of materiality.
We render the foregoing opinions as members of
the bar of the State of New York and express no opinion as to laws other than the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States of America.
We hereby consent to the use of this opinion letter
as Exhibit 5.1 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus.
In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section
7 of the Securities Act or the rules or regulations of the SEC thereunder.
|
Very truly yours, |
|
|
|
/s/ Morgan, Lewis & Bockius LLP |
Exhibit 23.1
Consent of Independent
Registered Public Accounting Firm
We consent to the reference to our firm under
the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Newmark Group, Inc. in
connection with offers and sales by affiliates of its 7.500% Senior Notes due 2029, and to the incorporation by reference therein of
our reports dated February 29, 2024, with respect to the consolidated financial statements of Newmark Group, Inc. and the effectiveness
of internal control over financial reporting of Newmark Group, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
|
New York, New York |
August 8, 2024 |
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ CHECK IF AN
APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
REGIONS BANK
(Exact name of trustee as specified in its charter)
Alabama |
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63-0371391 |
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
|
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(I.R.S. Employer
Identification No.)
|
|
|
1900 Fifth Avenue North, Birmingham, Alabama |
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35203 |
(Address of principal executive offices) |
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(Zip code) |
Vanessa Williams
Regions Bank
1180 West Peachtree Street, Suite 1200
Atlanta, Georgia 30309
(404) 221-4588
(Name, address, and telephone number of agent
for service)
NEWMARK GROUP, INC.
(Exact name of obligor as specified in its charter)
Delaware |
|
81-4467492 |
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
125 Park Avenue
New York, New York
|
|
10017 |
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
(Titles of the indenture securities)
Item 1. |
General Information. Furnish the following information as to the trustee: |
|
(a) |
Name and address of each examining or supervising authority to which it is subject. |
State of Alabama State Banking Department
PO Box 4600
Montgomery, AL 36103-4600
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of Atlanta
Atlanta, Georgia 30309
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. |
Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. |
None with respect to the trustee.
Items 3-15. |
No responses are included for Items 3 through 15. Responses to those Items are not required because the obligor is not in default on any securities issued under indentures under which Regions Bank acts as trustee. |
Item 16. |
List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Regions Bank, a state chartered bank organized and existing under the laws of Alabama, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta, Georgia on August 8, 2024.
|
REGIONS BANK |
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|
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By: |
/s/ Vanessa Williams |
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Name: |
Vanessa Williams |
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Title: |
Vice President |
EXHIBIT 1
ARTICLES
OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
REGIONS BANK
an Alabama banking corporation
Pursuant to the provisions
of Section 10A-1-3.13 and Sections 10A-2-10.01 through 10A-2-10.09 of the Alabama Business and Nonprofit Entities Code, as amended, (the
“Law”), the undersigned banking corporation adopts the following Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the banking corporation
is Regions Bank (the “Bank”).
SECOND: The Bank is an Alabama banking corporation.
THIRD: The Restated
Articles of Incorporation of the Bank were filed with the Office of the Judge of Probate of Jefferson County, Alabama on October 28, 2014.
The Alabama Entity ID Number of the Bank is 006-854.
FOURTH: The
Second Amended and Restated Certificate of Incorporation, attached hereto as Exhibit A and incorporated herein by this reference,
is hereby adopted as the articles of incorporation of the Bank.
FIFTH: The Second
Amended and Restated Certificate of Incorporation was adopted and approved by the Board of Directors of the Bank at a meeting duly called
and held on July 22, 2020 and by the sole shareholder of the Bank pursuant to an action by written consent dated as of July 22, 2020.
SIXTH: The designation,
number of outstanding shares, and number of votes entitled to be cast by the sole shareholder on the Second Amended and Restated Certificate
of Incorporation were as follows:
Shares | |
Outstanding | | |
Entitled to Vote | |
Common Stock, par value $5.00 | |
| 21,546 | | |
| 21,546 | |
SEVENTH: The
number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation that voted FOR the Second Amended and
Restated Certificate of Incorporation and the number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation
that voted AGAINST the Second Amended and Restated Certificate of Incorporation were as follows:
| |
Total Voted | | |
Total Voted | |
Shares | |
FOR | | |
AGAINST | |
Common Stock | |
| 21,546 | | |
| 0 | |
EIGHTH: The
number of shares that voted FOR the Second Amended and Restated Certificate of Incorporation was sufficient for approval thereof by the
sole shareholder of the Bank, as required by the Law and the Articles of Incorporation.
NINTH: The original
written approval issued by the Superintendent of the Alabama State Banking Department with respect to the Second Amended and Restated
Certificate of Incorporation is attached hereto as Exhibit A and recorded herewith.
IN WITNESS WHEREOF, the
Bank has caused these Articles of Amendment to the Articles of Incorporation of the Bank to be executed in its name and on its behalf
as of August 6, 2020.
|
|
BANK: |
|
|
|
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REGIONS BANK |
|
|
an Alabama banking corporation |
|
|
|
By: |
/s/ Hope D. Mehlman |
|
|
Hope D. Mehlman |
|
|
Executive Vice President, Corporate |
|
|
Secretary, Chief Governance Officer, and Deputy General Counsel |
This instrument prepared by:
Andrew S. Nix
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, AL 35203
(205) 254-1000
EXHIBIT A
Second Amended and Restated Certificate of Incorporation
(attached)
SECOND AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION
OF
REGIONS BANK
1. The
name of this corporation shall be Regions Bank. The corporation is a domestic banking corporation.
2. The
principal place of business of the corporation shall be 1900 Fifth Avenue North, Birmingham, Alabama 35203. The general business of Regions
Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities.
3. The
Bank shall have the following objects, purposes and powers:
a. To
be and serve as an Alabama banking corporation pursuant to the Alabama Banking Code, Section 5-1A-1 et seq. of the Code of Alabama
1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as
the “Banking Code”), with all the power and authority that may be exercised by an Alabama banking corporation.
b. To
engage in any lawful business, act or activity for which a banking corporation may be organized under Alabama law, it being the purpose
and intent of this section to invest the Bank with the broadest objects, purposes and powers lawfully permitted an Alabama banking corporation.
c. To
engage in any lawful business, act or activity for which a corporation may be organized under the Alabama Business Corporation Law of
2019, Section 10A-2A1.01 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary
thereto or substituted therefor, hereinafter referred to as the “ABCL”), to the extent not inconsistent with the provisions
of the Banking Code or any other regulation of a banking corporation in the State of Alabama.
d. Without
limiting the scope and generality of the foregoing, the Bank shall have the following specific objects, purposes and powers:
| i. | To conduct a general banking business through such means and at such places as the Board of Directors may deem proper. |
| ii. | To sue and be sued, complain and defend, in its corporate name. |
| iii. | To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile
thereof, to be impressed or affixed or in any other manner reproduced. |
| iv. | To purchase, take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise deal in
and with, real or personal property, or any interest therein, wherever situated. |
| v. | To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part
of its property and assets, subject to the limitations hereinafter prescribed. |
| vi. | To lend money and use its credit to assist its employees. |
| vii. | To purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage,
lend, pledge or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic
or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other
government, state, territory, governmental district or municipality or of any instrumentality thereof as may be permitted by law or appropriate
regulations. |
| viii. | To make contracts, guarantees and indemnity agreements and incur liabilities, borrow money at such rates
of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage,
pledge of or creation of security interests in, all or any of its property, franchises or income, or any interest therein. |
| ix. | To lend money for its corporate purposes, invest and reinvest its funds and take and hold real and personal
property as security for the payment of funds so loaned or invested. |
| x. | To conduct its business, carry on its operations and have offices and exercise the powers granted by this
section, within or without the State of Alabama. |
| xi. | To elect or appoint and remove officers and agents of the Bank, define their duties and fix their compensation. |
| xii. | To make and alter by its board of directors by-laws not inconsistent with its certificate of incorporation
or with the laws of the State of Alabama for the administration and regulation of the affairs of the Bank. |
| xiii. | To make donations for the public welfare or for charitable, scientific or educational purposes. |
| xiv. | To transact any lawful business which the board of directors shall find will be in aid of governmental
policy. |
| xv. | To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans,
stock option plans and other incentive plans for any or all of its directors, officers and employees. |
| xvi. | To be a promoter, incorporator, partner, member, trustee, associate or manager of any domestic or foreign
corporation, partnership, joint venture, trust or other enterprise. |
| xvii. | To consolidate or merge, before or after the completion of its works, with any other foreign or domestic
corporation or corporations engaged in the business of banking or trust companies doing a banking business. |
| xviii. | To discount bills, notes or other evidences of debt. |
| xix. | To receive and pay out deposits, with or without interest, pay checks and impose charges for any services. |
| xx. | To receive on special deposit money, bullion or foreign coins or bonds or other securities. |
| xxi. | To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills
of exchange, notes and other negotiable paper. |
| xxii. | To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities. |
| xxiii. | To take and receive security by mortgage, security or otherwise on property, real and personal. |
| xxiv. | To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver
or fiduciary. |
| xxv. | To lease real and personal property upon specific request of a customer, provided that it complies with
any applicable laws of the State of Alabama regulating leasing real property or improvements thereon to others. |
| xxvi. | To perform computer, management and travel agency services for others. |
| xxvii. | To subscribe to the capital stock and become a member of the Federal Reserve System and comply with rules
and regulations thereof |
| xxviii. | To do business and exercise directly or through operating subsidiaries any powers incident to the business
of banks. |
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following:
a. The
number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board; provided,
however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office; provided further,
that the number of Directors shall not be less than five (5) nor more than twenty-five (25). Each Director shall be the record owner of
the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding
any other provisions of this Second Amended and Restated Certificate of Incorporation or the by-laws of the Bank (and notwithstanding
the fact that some lesser percentage may be specified by law, this Second Amended and Restated Certificate of Incorporation or the by-laws
of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause, by the affirmative
vote of the holder(s) of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally
in the election of directors (considered for this purpose as one class) cast at a meeting of stockholders called for that purpose.
6. The
aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty-six (30,546)
shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue
fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled
to receive such fractions are determined.
a. Stockholders
shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to
time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the stockholders.
b. Authority
is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for
such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of
stockholders and may be voted by the stockholders of record either in person or by proxy.
c. In
the event of any liquidation, dissolution or winding up of the Bank, or upon the distribution of the assets of the Bank, the assets of
the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed ratably among the holders of
the Common Stock. Neither the merger nor the consolidation of the Bank with another corporation, nor the sale or lease of all or substantially
all of the assets of the Bank, shall be deemed to be a liquidation, dissolution or winding up of the Bank or a distribution of its assets.
7. The
Chief Executive Officer, Secretary, Board of Directors or holder(s) of at least 90% of the issued and outstanding voting stock of the
Bank may call a special meeting of stockholders at any time. The Bank shall notify stockholders of the place, if any, date and time of
each annual and special meeting of stockholders no fewer than ten (10) nor more than sixty (60) days before the meeting date, such notice
to be delivered to each stockholder of record at the address as shown upon the stock transfer book of the Bank. Notice of a special meeting
of stockholders shall include a description of the purpose or purposes for which the meeting is called.
8. The
Bank reserves the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate of Incorporation,
in the manner now or hereafter provided by law, at any regular or special meeting of stockholders, and all rights conferred upon officers,
directors and stockholders of the Bank hereby are granted subject to this reservation.
9. The
Bank shall indemnify its officers, directors, employees and agents in accordance with the indemnification provisions set forth in the
by-laws of the Bank, as may be amended from time to time, and in all cases in accordance with applicable laws and regulations.
10. To
the extent not inconsistent with the provisions of the Banking Code or the rules, regulations or orders of the Superintendent of the Alabama
State Banking Department, and pursuant to Section 10A-2A-17.01 of the ABCL, the Bank hereby elects to be governed by the provisions of
the ABCL, and all references in this Second Amended and Restated Certificate of Incorporation to the ABCL shall mean the Alabama Business
Corporation Law of 2019.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
hereby certifies that, in accordance with applicable law, this Second Amended and Restated Certificate of Incorporation has been adopted
by the Bank as of the 6th day of August, 2020.
|
By: |
/s/ Hope D. Mehlman |
|
|
Hope D. Mehlman |
|
|
Executive Vice President, Corporate Secretary, Chief Governance Officer, and Deputy General Counsel |
STATE OF ALABAMA
MONTGOMERY COUNTY
I, Mike Hill, as Superintendent of Banks
for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Second Amended and Restated Certificate
of Incorporation whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Amend and
Restate the Certificate of Incorporation.
See attached Articles of Amendment which Amend and Restate
the Certificate of Incorporation of Regions Bank.
I do hereby certify that said Second
Amended and Restated Certificate of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby
approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Second
Amended and Restated Certificate of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 3rd
day of August, 2020.
|
By: |
/s/ Mike Hill |
|
|
Mike Hill |
|
|
Superintendent of Banks |
EXHIBIT 4
BY-LAWS OF
REGIONS BANK
(As amended and restated July 21, 2021)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office of Regions
Bank (the “Bank”) shall be maintained at the office of the Corporation Service Company, Inc., in the City of Montgomery, in
the County of Montgomery, in the State of Alabama, or such other location as may be designated by the Board of Directors. Corporation
Service Company, Inc. shall be the registered agent of the Bank unless and until a successor registered agent is appointed by the Board
of Directors.
Section 2. Other Offices.
The Bank may have other offices
at such places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham,
Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders
for the election of members of the Board of Directors (“Directors”) and for such other business as the Board of Directors
may determine, shall be held at such place, time and date as the Board of Directors, by resolution, shall determine.
Section 2. Special Meetings.
The Chief Executive Officer,
Secretary, Board of Directors or holder(s) of at least ninety percent (90%) of the issued and outstanding voting stock of the Bank may
call a special meeting of stockholders at any time. Special meetings of stockholders may be held at such place, time and date as shall
be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of
the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act
of the stockholders on that matter, except as otherwise required by law or by the Certificate of Incorporation of the Bank.
Section 4. Quorum.
At each meeting of stockholders,
except where otherwise provided by applicable law, the Certificate of Incorporation or these By-Laws, the holders of a majority of the
outstanding shares of the Bank entitled to vote on a matter at the meeting, represented in person or by proxy, shall constitute a quorum.
If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from
time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a
duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
Section 5. Notice of Meeting.
Written or printed notice
stating the place, day and time of the meeting and, in case of a special meeting of stockholders, the purpose or purposes of the meeting,
shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled
to vote at such meeting. The notice shall also include the record date for determining the stockholders entitled to vote at the meeting,
if that date is different from the record date for determining stockholders entitled to notice of the meeting. Such notice may be communicated
in person, by telephone, teletype, telecopier, facsimile transmission or other form of electronic communication, or by mail or private
carrier. The notice shall be deemed to have been delivered (i) if mailed postage prepaid and correctly addressed to a stockholder, upon
deposit in the United States mail; (ii) if mailed by United States mail postage prepaid and correctly addressed to a recipient other than
a stockholder, the earliest of when it is actually received or (A) if sent by registered or certified mail, return receipt requested,
the date shown on the return receipt signed by or on behalf of the addressee or (B) five (5) days after it is deposited in the United
States mail; or (iii) if an electronic transmission, when (A) it enters an information processing system that the recipient has designated
or uses for the purposes of receiving electronic transmissions or information of the type sent, and from which the recipient is able to
retrieve the electronic transmission and (B) it is in a form capable of being processed by that system. The attendance of a stockholder
at a meeting shall constitute a waiver of lack of notice or defective notice of such meeting, unless the stockholder expresses such objection
at the beginning of the meeting, and shall constitute a waiver of any objection to the consideration of a particular matter that is not
within the purpose or purposes described in the notice, unless the stockholder objects to considering the matter before action is taken
thereon.
Section 6. Informal Action by Stockholders.
Any action required or permitted
to be taken at any meeting of stockholders may be taken without a meeting, and without prior notice, if one or more consents in writing
setting forth the action so taken are signed by the holders of outstanding stock having not less than the minimum number of votes that
would be required to authorize or take the action at a meeting at which all shares of stock entitled to vote on the action were present
and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the stockholders approving
the action and delivered to the Bank for filing by the Bank with the minutes or corporate records. No written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60) days of the earliest date on which a consent is delivered to
the Bank as required by this section, written consents signed by sufficient stockholders to take the action have been delivered to the
Bank. A written consent may be revoked by a writing to that effect delivered to the Bank before unrevoked written consents sufficient
in number to take the corporate action have been delivered to the Bank.
A consent signed pursuant
to the provisions of this section has the effect of a vote taken at a meeting and may be described as such in any document. The action
taken by written consent shall be effective when written consents signed by sufficient stockholders to take the action have been delivered
to the Bank.
If action is taken by less
than unanimous written consent of the stockholders, the Bank shall give its nonconsenting stockholders written notice of the action not
more than ten (10) days after written consents sufficient to take the action have been delivered to the Bank. The notice must reasonably
describe the action taken and contain or be accompanied by the same material that would have been required to be sent to stockholders
in a notice of a meeting at which the action would have been submitted to the stockholders for action.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors that
shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but
shall not be less than five (5) persons or more than twenty-five (25) persons. The number of Directors shall not be reduced so as to shorten
the term of any Director in office at the time.
Directors elected at each
annual or special meeting or appointed pursuant to Article III, Section 4 of these By-Laws shall hold office until the next annual meeting
and until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal.
Directors need not be residents of Alabama.
Section 2. Chair of the Board and Lead Independent Director.
The Board of Directors shall
by majority vote designate from time to time from among its members a Chair of the Board of Directors. The Chair of the Board of Directors
shall preside at all meetings of the stockholders and of the Board of Directors. He or she shall have and perform such duties as prescribed
by these By-Laws and by the Board of Directors. The position of Chair of the Board of Directors is a Board position; provided, however,
the position of Chair of the Board of Directors may be held by a person who is also an officer of the Bank.
In the absence of the Chair
of the Board of Directors, or in the case he or she is unable to preside, the Lead Independent Director, if at the time a Director of
the Bank has been designated by the Board of Directors as such, shall have and exercise all powers and duties of the Chair of the Board
of Directors and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting neither of such persons
is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or any portion thereof.
Section 3. Resignations.
Any Director may resign at
any time. All resignations shall be made in writing, and shall take effect at the time of receipt by the Chair of the Board of Directors,
Chief Executive Officer, President or Secretary or at such other time as may be specified therein. The acceptance of a resignation shall
not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director
becomes vacant, including by reason of resignation or removal, or the size of the Board of Directors is increased, the remaining Directors
in office, even if less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy or new position, and
such person shall hold office for the unexpired term and until his or her successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed
at any time, with or without cause, by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of
capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a
meeting of stockholders called for that purpose.
Section 6. Powers.
The business and affairs of
the Bank shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by applicable law,
the Certificate of Incorporation of the Bank or pursuant to these By-Laws.
Section 7. Meetings.
Regular meetings of the Board
of Directors may be held without notice at such places and times as shall be determined from time to time by the Board of Directors; provided,
however, that such regular meetings shall be held at intervals in compliance with the Alabama Banking Code, Section 5-1A-1 et seq.
of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor,
hereinafter referred to as the “Banking Code”).
Special meetings of the Board
of Directors may be called by the Chair of the Board of Directors, Lead Independent Director, Chief Executive Officer or President, or
Secretary on the request of any two members of the Board of Directors, on at least two (2) days’ notice to each Director and shall
be held at such place or places as may be determined by the Board of Directors, or as shall be stated in the notice of such meeting.
Unless otherwise restricted
by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone, video or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute
presence in person at the meeting. Notice of any special meeting of the Board of Directors need not be given personally, and may be given
by United States mail, postage prepaid or by any form of electronic communication, and shall be deemed to have been given on the date
such notice is transmitted by the Bank (which, if notice is mailed, shall be the date when such notice is deposited in the United States
mail, postage prepaid, directed to the applicable Director at such Director’s address as it appears on the records of the Bank).
Section 8. Quorum; Vote Required for Action.
A majority of the Directors
shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof
need be given other than by announcement at the meeting which shall be so adjourned. The vote of a majority of the Directors present at
a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate of Incorporation or these By-Laws
shall require a vote of a greater number.
Section 9. Compensation.
Unless otherwise restricted
by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors.
Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent
or otherwise, and receiving compensation therefor.
Section 10. Action Without Meeting.
Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action
a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or committee. Action taken under this section is the act of
the Board of Directors when one or more consents signed by all of the Directors are delivered to the Bank. The consent may specify a later
time as the time at which the action taken is to be effective. A Director’s consent may be withdrawn by a revocation signed by the
Director and delivered to the Bank before delivery to the Bank of unrevoked written consents signed by all of the Directors. A consent
signed under this section has the effect of action taken at a meeting of the Board of Directors and may be described as such in any document.
Section 11. Committees.
A majority of the Board of
Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the
Bank. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any committee of the Board of Directors, to the extent provided in the resolutions
of the Board of Directors or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the
business and affairs of the Bank and may authorize the seal of the Bank to be affixed to all papers that may require it, in each case
to the fullest extent permitted by applicable law. In the absence or disqualification of any member of a committee from voting at any
meeting of such committee, the remaining member or members thereof present at such meeting and not disqualified from voting, whether or
not the remaining member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at such
meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible
to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number
and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’
qualifying shares.
Section 13. Directors Protected.
In accordance with the Alabama
Business Corporation Law, Chapter 2A of Title 10A of the Code of Alabama (1975), or any statute amendatory or supplemental thereof (the
“Corporation Law”) and specifically Section 10A-2A-8.30, each Director shall, in the performance of his or her duties, be
fully protected in relying in good faith upon information, opinions, reports or statements, including financial statements and other financial
data, made to the Directors by the officers or employees of the Bank; legal counsel, public accountants, certified public accountants
or other persons as to matters the Director reasonably believes are within the person’s professional or expert competence; or a
committee of the Board of Directors of which he or she is not a member if the Director reasonably believes the committee merits confidence,
or in relying in good faith upon other records or books of account of the Bank.
ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall
be a Chief Executive Officer; a President; one or more vice presidents or directors (referring in this context to service in an officer
capacity), who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Executive Managing Directors, Senior Vice
Presidents, Managing Directors, Vice Presidents, Directors, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries;
a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall
be appointed annually by the Board of Directors to serve for a term of one (1) year and until their respective successors are appointed
and qualified or until such officer’s earlier death, resignation, retirement or removal, except that the Board of Directors may
delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures
established or modified by the Board from time to time. None of the officers of the Bank need be Directors. More than one office may be
held by the same person. The conduct of the business and affairs of the Bank by the officers shall be subject to the oversight of the
Board of Directors and of any committee of the Board of Directors having authority over the subject matter.
Section 2. Chief Executive Officer.
The Board of Directors shall
appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall
be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs,
including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between
sessions of the Board of Directors to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion,
to be done and performed and to execute for and in the name of the Bank all instruments, agreements and deeds that may be authorized to
be executed on behalf of the Bank or may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall have,
and may exercise, the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws,
the Board of Directors or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief
Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed
operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board of Directors
to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and
to execute for and in the name of the Bank all instruments, agreements and deeds that may be authorized to be executed on behalf of the
Bank or may be required by law.
Section 4. Vice Presidents.
The vice presidents or directors,
who may be designated as Senior Executive Vice Presidents, Executive Vice Presidents, Executive Managing Directors, Senior Vice Presidents,
Managing Directors, Vice Presidents, Directors, and Assistant Vice Presidents, shall, subject to the control of the Chief Executive Officer
or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations
of the Bank and over its personnel.
Section 5. Chief Financial Officer.
The Chief Financial Officer,
or his or her designee, shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties
as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer or the President.
Section 6. Secretary and Assistant Secretary.
The Secretary shall keep minutes
of all meetings of the stockholders and the Board of Directors unless otherwise directed by either of those bodies. The Secretary, or
in his or her absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. The Secretary shall
perform all of the duties incident to the office of Secretary and shall do and perform such other duties as may from time to time be assigned
by the Board of Directors, the Chair of the Board of Directors, the Chief Executive Officer or the President.
Section 7. Controller.
The Controller shall, under
the direction of the Chief Executive Officer, the President, the Chief Financial Officer or other more senior officer, have general supervision
and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the
condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank
and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller
shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial
records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial
Officer or other more senior officer.
Section 8. Auditor.
The Auditor’s office
may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the
Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from
time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers,
agents and employees of the Bank with respect thereto. The Auditor, whether an employee of the Bank or of its parent, shall be directly
accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently
of all officers, agents and employees of the Bank. The Auditor shall render reports covering matters in his or her charge regularly and
upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may
appoint such other officers and agents as it may deem advisable, such as General Counsel, who shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by
the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
Section 10. Management Policymaking Committee.
Pursuant to the By-Laws of
Regions Financial Corporation, the Chief Executive Officer shall establish and name (and may rename from time to time) an executive management
committee to develop, publish and implement policies and procedures for the operation of Regions Financial Corporation and its subsidiaries
and affiliates, including the Bank.
Section 11. Officer in Charge of Wealth Management.
The officer in charge of Wealth
Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs
of Private Wealth Management, Institutional Services and Wealth Management Middle Office, which groups are responsible for exercise of
the Bank’s trust powers. Such officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and
acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments,
transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the
purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled
by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 12. Other Officers in Private
Wealth Management, Institutional Services and Wealth Management Middle Office.
The officer in charge of Wealth
Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services and Wealth Management
Middle Office. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional
Services and Wealth Management Middle Office are empowered and authorized to make, execute and acknowledge all checks, bonds, certificates,
deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution,
proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer,
management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 13. Removal and Resignation of Officers.
At its pleasure, the Board
of Directors may remove any officer from office at any time by a majority vote of the Board of Directors; provided, however, that the
terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will
terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s
employment by the Bank. Any officer may resign at any time by delivering notice (whether written or verbal) to the Bank. Such resignation
shall be effective immediately unless the notice of resignation specifies a later effective date.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the
Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The
certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number
of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction
of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any
Senior Executive Vice President or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate
in the place of the one lost or destroyed, he or she shall make an affidavit of such loss or destruction and deliver the same to any one
of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the Bank and save it harmless against
any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the
discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved
or rejected by the Board of Directors, the Chief Executive Officer, the President or a Senior Executive Vice President before the issue
of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and
to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person
by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a
separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the
shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such
assignment or power of attorney may be either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall be issued by
the Bank.
Section 5. Stockholders Record Date.
In order that the Bank may
determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive any rights in respect of any change, conversion or exchange of stock or for any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 6. Dividends.
Subject to the provisions
of the Certificate of Incorporation, at any regular or special meeting the Board of Directors may, out of funds legally available therefor,
declare dividends upon the capital stock of the Bank as and when it deems expedient. Before declaring any dividend, there may be set apart
out of any fund of the Bank available for dividends, such sum or sums as the Directors, from time to time in their discretion, deem proper
for working capital; as a reserve fund to meet contingencies; for equalizing dividends; or for such other purposes as the Directors shall
deem conducive to the interests of the Bank. No dividends shall be declared that exceed the amounts authorized by applicable laws and
regulations or are otherwise contrary to law.
Section 7. Seal.
The Bank may have a corporate
seal, which shall have the name of the Bank inscribed thereon and shall be in such form as prescribed by the Board of Directors from time
to time. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation.” The Secretary
of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents and papers as required by law
or as customary or appropriate in the Secretary’s judgment and discretion. Without limiting the general authority of the Board of
Directors of the Bank to name, appoint, remove and define the duties of officers of the Bank, the Secretary is further authorized to cause
reproductions of the seal to be made, distributed to and used by officers and employees of the Bank whose duties and responsibilities
involve the execution and delivery of instruments, documents and papers bearing the seal of the Bank. In this regard, the Secretary is
further authorized to establish, implement, interpret and enforce policies and procedures governing the use of the seal and the authorization
by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include
(i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s
judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize
Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, Services, etc.
The Chief Executive Officer,
the President, any vice president or director, any Assistant Vice President, any Branch Manager, any Financial Relationship Specialist,
any Financial Relationship Consultant or any other employee designated by the Board of Directors is authorized and empowered on behalf
of the Bank and in its name to sign and endorse checks and warrants; to execute and deliver any and all documents that are necessary or
desirable in connection with the opening of customer deposit accounts with the Bank, including, without limitation, documents associated
with establishing treasury management services in connection with deposit accounts; documents requested or required by a third party in
connection with the opening or rollover of individual retirement accounts to the Bank or otherwise; draw drafts; issue and sign cashier’s
checks; guarantee signatures; give receipts for money due and payable to the Bank; and sign such other papers and do such other acts as
are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board of Directors may
be limited by general or specific resolution of the Board of Directors.
Section 10. Notice and Waiver of Notice.
Whenever any notice whatever
is required to be given under the provisions of any law or under the provisions of the Certificate of Incorporation of the Bank or these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of business at
the meeting because the meeting is not lawfully called or convened.
Section 11. Right of Indemnity.
To the full extent provided
for and in accordance with the Corporation Law, and specifically Section 10A-2A-8.50 et seq., the Bank shall indemnify and hold
harmless each Director and each officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily
incurred by him or her in connection with the defense of any claim, or any action, suit or proceeding against him or her or in which he
or she is made a party, by reason of him or her being or having been a Director or officer of the Bank, or who, while a Director or officer
of the Bank, is or was serving at the Bank’s request as a director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Such right of indemnity shall not
be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation,
rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the
right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein.
Notwithstanding anything to
the contrary, the Bank shall not make or agree to make any indemnification payment to a Director or officer or any other institution-affiliated
party (as such term is defined in 12 CFR § 359.1) with respect to (i) any civil money penalty or judgment resulting from any administrative
or civil action instituted by any federal banking agency, except in full compliance with 12 CFR Part 359, (ii) any assessment, order of
restitution, penalty or similar liability imposed under authority of the Banking Code, or (iii) any liability for violation of Section
10A-2A-8.32 of the Corporation Law.
In advance of final disposition,
the Bank may, but is not required to, pay for or reimburse the reasonable expenses incurred by a person who may become eligible for indemnification
under this Article V, Section 11, provided the conditions set forth in Section 10A-2A-8.53 of the Corporation Law (and, if applicable,
12 CFR § 359.5) shall have been satisfied.
The Bank may purchase and
maintain insurance on behalf of said Directors or officers against liability asserted against or incurred by a Director or officer acting
in such capacity as described in these By-Laws. Such insurance coverage shall not be used to pay or reimburse a person for the cost of
(i) any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any
federal banking agency or (ii) any assessment or penalty imposed under authority of the Banking Code. Such insurance coverage may be used
to pay any legal or professional expenses incurred in connection with such proceeding or action or the amount of any restitution to the
Bank. Any insurance coverage of legal or professional expenses will be coordinated with the Bank’s determination whether to advance
expenses in advance of final disposition, taking into account the terms and conditions of the coverage and the requirements of Section
10A-2A-8.53 of the Corporation Law.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer;
the President; any Senior Executive Vice President, Executive Vice President, Senior Vice President or Vice President; or any officer
holding the title of Executive Managing Director, Managing Director or Director is authorized, in his or her discretion, to do and perform
any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make,
execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor
or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, contracts, proxies to vote
stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management
or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank,
either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any
other institution; to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions
as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank
promissory notes or other appropriate evidences of indebtedness; and to guarantee the obligations of any subsidiary or affiliate of the
Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not
limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations
of the Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements
and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments and other documents) relating to derivative
transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions,
transfers and assignments, servicing and sub-servicing agreements, vendor agreements, contracts, securitizations and transactions of whatever
kind or description arising in the conduct of the Bank’s business.
The authority to execute and
deliver documents, instruments and agreements may be limited by resolution of the Board of Directors or a committee of the Board of Directors,
by the Chief Executive Officer or by the President, by reference to subject matter, category, amount, geographical location or any other
criteria and may be made subject to such policies, procedures and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by
the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or Executive Managing Director or above,
the Controller, the Bank’s General Counsel and any other officer as may be designated by the Board of Directors shall have full
power and authority on behalf of the Bank (i) to attend and to act and vote or (ii) to execute a proxy or proxies empowering others to
attend and to act and vote, at any meetings of security holders of any of the corporations, partnerships, limited liability companies
or other entities in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all
rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised,
if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall,
pursuant to the Banking Code, designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for
which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral,
whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have
the power and authority to sign or execute any and all collateral release documents that may be necessary or desirable for the purpose
of releasing property or property rights held by the Bank as collateral for obligations to the Bank that are paid in full or otherwise
satisfied or settled and enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal
manner to cancel such indebtedness and to release said security, and the Chief Executive Officer, the President or any Vice President
or Director of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction
of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or
her discretion appoint.
ARTICLE VI. AMENDMENTS
Except as otherwise provided
herein or in the Certificate of Incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority
of the Directors then holding office at any regular or special meeting of the Board of Directors, and the stockholders may make, alter
or repeal any By-Laws, whether or not adopted by them.
ARTICLE VII. EMERGENCY BY-LAWS
Section 1. Emergency By-Laws.
This Article VII shall be
operative if a quorum of the Bank’s Directors cannot readily be assembled because of some catastrophic event (an “emergency”),
notwithstanding any different or conflicting provisions in these By-Laws, the Certificate of Incorporation or the Code of Alabama. To
the extent not inconsistent with the provisions of this Article VII, the By-Laws provided in the other Articles of these By-Laws and the
provisions of the Certificate of Incorporation shall remain in effect during such emergency, and upon termination of such emergency, the
provisions of this Article VII shall cease to be operative.
Section 2. Meetings.
During any emergency, a meeting
of the Board of Directors, or any committee thereof, may be called by any member of the Board of Directors, the President, a Senior Executive
Vice President, the Secretary or an Assistant Secretary. Notice of the time and place of the meeting shall be given by any available means
of communication by the individual calling the meeting to such of the Directors and/or Designated Officers, as defined in Section 3 of
this Article VII, as it may be feasible to reach. Such notice shall be given at such time in advance of the meeting as, in the judgment
of the individual calling the meeting, circumstances permit. As a result of such emergency, the Board of Directors may determine that
a meeting of stockholders not be held at any place, but instead be held solely by means of remote communication in accordance with the
Corporation Law.
Section 3. Quorum.
At any meeting of the Board,
or any committee thereof, called in accordance with Section 2 of this Article VII, the presence or participation of two Directors or one
Director and a Designated Officer shall constitute a quorum for the transaction of business. In the event that no Directors are able to
attend the meeting of the Board of Directors, then the Designated Officers in attendance shall serve as directors for the meeting, without
any additional quorum requirement and will have full powers to act as directors of the Bank.
The Board of Directors or
the committees thereof, as the case may be, shall, from time to time but in any event prior to such time or times as an emergency may
have occurred, designate the officers of the Bank in a numbered list (the “Designated Officers”) who shall be deemed, in the
order in which they appear on such list, directors of the Bank for purposes of obtaining a quorum during an emergency, if a quorum of
Directors cannot otherwise be obtained.
Section 4. By-Laws.
At any meeting called in accordance
with Section 2 of this Article VII, the Board of Directors or a committee thereof, as the case may be, may modify, amend or add to the
provisions of this Article VII so as to make any provision that may be practical or necessary for the circumstances of the emergency.
Section 5. Liability.
No officer, Director or employee
of the Bank acting in accordance with the provisions of this Article VII shall be liable except for willful misconduct.
Section 6. Repeal or Change.
The provisions of this Article
VII shall be subject to repeal or change by further action of the Board of Directors or by action of the stockholders, but no such repeal
or change shall modify the provisions of Section 5 of this Article VII with regard to action taken prior to the time of such repeal or
change.
Section 7. Continued Operations.
In the event of an emergency
declared by the President of the United States or the person performing his or her functions, the officers and employees of the Bank will
continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute
require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal
Deposit Insurance Corporation during the emergency.
EXHIBIT 6
CONSENT
In accordance with Section 321 (b) of the Trust Indenture Act of 1939,
Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities
may be furnished by such regulatory authorities to Securities and Exchange Commission upon request therefor.
Dated: August 8, 2024
|
REGIONS BANK |
|
|
|
By: |
/s/
Vanessa Williams
|
|
Name: |
Vanessa Williams |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition for Insured
Banks and Savings Associations
REGIONS BANK
As of the close of business on June 30, 2024:
ASSETS | |
Thousands of
Dollars | |
Cash and balances due from depository institutions: | |
| 9,109,000 | |
Securities: | |
| 30,156,000 | |
Federal funds sold and securities purchased under agreement to resell: | |
| 0 | |
Loans and leases held for sale: | |
| 535,000 | |
Loans and leases net of unearned income and allowance: | |
| 97,508,000 | |
Trading Assets: | |
| 17,000 | |
Premises and fixed assets: | |
| 2,095,000 | |
Other real estate owned: | |
| 14,000 | |
Investments in unconsolidated subsidiaries and associated companies: | |
| 171,000 | |
Direct and indirect investments in real estate ventures: | |
| 0 | |
Intangible assets: | |
| 6,497,000 | |
Other assets: | |
| 8,558,000 | |
Total Assets: | |
| 153,039,000 | |
LIABILITIES | |
Thousands of
Dollars | |
Deposits | |
| 128,943,000 | |
Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
Trading liabilities: | |
| 0 | |
Other borrowed money: | |
| 3,216,000 | |
Subordinated notes and debentures: | |
| 496,000 | |
Other Liabilities: | |
| 4,309,000 | |
Total Liabilities | |
| 136,964,000 | |
EQUITY CAPITAL | |
Thousands of
Dollars | |
Common Stock | |
| 0 | |
Surplus | |
| 16,399,000 | |
Retained Earnings | |
| 2,909,000 | |
Accumulated other comprehensive income | |
| -3,266,000 | |
Total Equity Capital | |
| 16,075,000 | |
Total Liabilities and Equity Capital | |
| 153,039,000 | |
S-3
S-3ASR
EX-FILING FEES
0001690680
NEWMARK GROUP, INC.
0001690680
2024-08-07
2024-08-07
0001690680
1
2024-08-07
2024-08-07
iso4217:USD
xbrli:pure
xbrli:shares
Calculation of Filing Fee Tables
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S-3
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NEWMARK GROUP, INC.
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Table 1: Newly Registered and Carry Forward Securities
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Security Type
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Security Class Title
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Fee Calculation or Carry Forward Rule
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Amount Registered
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Proposed Maximum Offering Price Per Unit
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Maximum Aggregate Offering Price
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Fee Rate
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Amount of Registration Fee
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Carry Forward Form Type
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Carry Forward File Number
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Carry Forward Initial Effective Date
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Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
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Newly Registered Securities
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Fees to be Paid
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1
|
Debt
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7.500% Senior Notes due 2029 (the "Notes")
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Other
|
|
|
|
0.0001476
|
$
0.00
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
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Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total Offering Amounts:
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|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
Net Fee Due:
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|
|
|
$
0.00
|
|
|
|
|
1
|
This registration statement relates to offers and sales of an indeterminate amount of the Notes in connection with ongoing market-making transactions in the Notes by affiliates of Newmark Group, Inc. (the "Registrant"). Pursuant to Rule 457(q) under the Securities Act of 1933, as amended, no filing fee is required for the registration of an indeterminate amount of the Notes to be offered and sold in market-making transactions by affiliates of the Registrant.
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v3.24.2.u1
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
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- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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v3.24.2.u1
Offerings - Offering: 1
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Aug. 07, 2024
USD ($)
|
Offering: |
|
Fee Previously Paid |
false
|
Other Rule |
true
|
Security Type |
Debt
|
Security Class Title |
7.500% Senior Notes due 2029 (the "Notes")
|
Fee Rate |
0.01476%
|
Amount of Registration Fee |
$ 0.00
|
Offering Note |
This registration statement relates to offers and sales of an indeterminate amount of the Notes in connection with ongoing market-making transactions in the Notes by affiliates of Newmark Group, Inc. (the "Registrant"). Pursuant to Rule 457(q) under the Securities Act of 1933, as amended, no filing fee is required for the registration of an indeterminate amount of the Notes to be offered and sold in market-making transactions by affiliates of the Registrant.
|
X |
- DefinitionTotal amount of registration fee (amount due after offsets).
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- DefinitionThe rate per dollar of fees that public companies and other issuers pay to register their securities with the Commission.
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- DefinitionCheckbox indicating whether filer is using a rule other than 457(a), 457(o), or 457(f) to calculate the registration fee due.
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- DefinitionThe title of the class of securities being registered (for each class being registered).
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- DefinitionType of securities: "Asset-backed Securities", "ADRs/ADSs", "Debt", "Debt Convertible into Equity", "Equity", "Face Amount Certificates", "Limited Partnership Interests", "Mortgage Backed Securities", "Non-Convertible Debt", "Unallocated (Universal) Shelf", "Exchange Traded Vehicle Securities", "Other"
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