As filed with the Securities and Exchange Commission on August 18, 2023.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
QCR HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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42-1397595
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3551 Seventh Street
Moline, Illinois 61265
(309) 736-3580
Todd A. Gipple
President and Chief Financial Officer
3551 Seventh Street
Moline, Illinois 61265
(309) 736-7745
Copy to:
Robert M. Fleetwood, Esq.
Abdul R. Mitha, Esq.
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
(312) 984-3100
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☐
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Warrants
Depositary Shares
Subscription Rights
Stock Purchase Contracts
Stock Purchase Units
Units
QCR Holdings, Inc. (“we,” “us,” “our” or the “Company”) may offer from time to time to sell, in one or more series, and in any combination, the securities described in this prospectus. This prospectus describes the general terms of these securities and the general manner in which we will offer them. Each time that we offer and sell securities using this prospectus, we will provide a supplement to this prospectus that contains specific information about the securities and their terms and the manner in which we will offer them for sale. The prospectus supplement also may add or update information contained in this prospectus. You should carefully read this prospectus and any supplement to this prospectus, as well as any documents we have incorporated into this prospectus by reference, before you invest in any of these securities. References herein to “prospectus supplement” are deemed to refer to any pricing supplement or free writing prospectus describing the specific pricing or other terms of the applicable offering that we prepare and distribute.
We may offer and sell these securities through underwriters, dealers or agents, or directly to purchasers on a continuous or delayed basis. We will provide the names of any such underwriters, dealers or agents used in connection with the sale of any of these securities, as well as any fees, commissions or discounts we may pay to such underwriters, dealers or agents in connection with the sale of these securities, in an applicable prospectus supplement.
Our common stock is listed on the Nasdaq Global Market under the symbol “QCRH”. Our principal executive offices are located at 3551 Seventh Street, Moline, Illinois 61265 and our telephone number is (309) 736-3580.
These securities are not bank deposits and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency, nor are they obligations of, or guaranteed by, a bank. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities, in any state or jurisdiction where the offer or sale is not permitted.
Investing in our securities involves risks. You should refer to the section entitled “Risk Factors” on page 1 of this prospectus, as well as the risk factors included in any applicable prospectus supplement and certain of our periodic reports and other information that we file with the Securities and Exchange Commission, and carefully consider that information before buying our securities.
Neither the Securities and Exchange Commission 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.
This prospectus is dated , 2023.
TABLE OF CONTENTS
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RISK FACTORS
An investment in our securities involves certain risks. Before making an investment decision, you should carefully read and consider the risk factors incorporated by reference in this prospectus, as the same may be updated from time to time by our future filings with the Securities and Exchange Commission, which we refer to as the SEC, as well as those contained in any applicable prospectus supplement. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment. This prospectus and documents incorporated by reference in this prospectus also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks faced by us.
ABOUT THIS PROSPECTUS
This prospectus is part of an “automatic shelf” registration statement that we have filed with the SEC, as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, which we refer to as the Securities Act. Under the automatic shelf registration rules, using this prospectus, together with the applicable prospectus supplement, we may sell from time to time, in one or more offerings, on a continuous or delayed basis, an indeterminate amount of any combination of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. Such prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. If there is any inconsistency between the information in this prospectus and an applicable prospectus supplement, you should rely on the information in such prospectus supplement. You should read this prospectus (including the documents incorporated by reference) and any applicable prospectus supplement together with the additional information referred to under the heading “Where You Can Find More Information.”
You should rely only on the information contained or incorporated by reference in this prospectus or in any supplement to this prospectus. We have not authorized anyone to provide you with different information. We are not making an offer to sell or soliciting an offer to buy these securities in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make the offer or solicitation. You should assume that the information contained or incorporated by reference in this prospectus or any prospectus supplement is accurate as of its date only.
Any of the securities described in this prospectus and in a prospectus supplement may be convertible or exchangeable into, or exercisable for, other securities that are described in this prospectus or will be described in a prospectus supplement, and may be issued separately, together or as part of a unit consisting of two or more securities, which may or may not be separate from one another. The securities offered hereby may include new or hybrid securities developed in the future that combine features of any of the securities described in this prospectus.
The registration statement that contains this prospectus, including the exhibits to the registration statement, also contains additional information about us and the securities offered under this prospectus. You can find the registration statement at the SEC’s website or at the SEC office mentioned under the heading “Where You Can Find More Information.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate by reference in this prospectus contain, and future oral and written statements of the Company and its management may contain, forward-looking statements, within the meaning of such term in the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act, with respect to the financial condition, results of operations, plans, objectives, future performance and business of the Company. Forward-looking statements, which may be based upon beliefs, expectations and assumptions of the Company’s management and on information currently available to management, are generally identifiable by the use of words such as “believe,” “expect,” “anticipate,” “bode”, “predict,” “suggest,” “project”, “appear,” “plan,” “intend,” “estimate,” “annualize,” “may,” “will,” “would,” “could,” “should,” “likely,” “might,” “potential,” “continue,” “annualized,” “target,” “outlook,” as well as the negative forms of those words, or other similar expressions. Additionally, all statements in this prospectus and the documents we incorporate by reference in this prospectus, including forward-looking statements, speak only as of the date they are made, and the Company undertakes no obligation to update any statement in light of new information or future events.
Our ability to predict results or the actual effect of future plans or strategies is inherently uncertain. The factors that could have a material adverse effect on the operations and future prospects of the Company and its subsidiaries are detailed in the “Risk Factors” section included under Item 1A. of Part I of our most recent Annual Report on Form 10-K and in the “Risk Factors” sections of this prospectus and any applicable prospectus supplement. In addition, there are other factors that may impact any public company, including ours, which could have a material adverse effect on the operations and future prospects of the Company and its subsidiaries.
These risks and uncertainties should be considered in evaluating forward-looking statements and undue reliance should not be placed on such statements.
QCR HOLDINGS, INC.
We are a multi-bank holding company headquartered in Moline, Illinois, that was formed in February 1993 under the laws of the state of Delaware. In 2016, the Company elected to operate as a financial holding company under the BHCA. The Company serves the Quad Cities, Cedar Rapids, Waterloo/Cedar Falls, Des Moines/Ankeny and Springfield communities through the following four wholly-owned banking subsidiaries, which provide full-service commercial and consumer banking and trust and asset management services:
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Quad City Bank & Trust Company, which is based in Bettendorf, Iowa, and commenced operations in 1994;
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Cedar Rapids Bank & Trust Company, which is based in Cedar Rapids, Iowa, and commenced operations in 2001;
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Community State Bank, which is based in Ankeny, Iowa, and was acquired in 2016; and
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Guaranty Bank, which is based in Springfield, Missouri, and was acquired in 2018.
We engage in direct financing lease contracts through m2 Lease Funds, LLC, a wholly-owned subsidiary of Quad City Bank & Trust Company and is based in Brookfield, Wisconsin. We also engage in correspondent banking through more than 181 relationships with community banking institutions headquartered primarily in Illinois, Iowa, Missouri and Wisconsin. At June 30, 2023, we had assets of $8.2 billion, deposits of $6.6 billion and stockholders’ equity of $822.7 million.
Our principal executive office is located at 3551 Seventh Street, Moline, Illinois 61265 and our telephone number is (309) 736-3580.
Additional information about us is included in our filings with the SEC, which are incorporated by reference into this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus.
USE OF PROCEEDS
Unless an applicable prospectus supplement states otherwise, we will use the net proceeds we receive from the sale of the securities offered hereby for general corporate purposes, which may include, among other things, investments in or advances to our subsidiaries, working capital, capital expenditures, stock repurchases, debt repayment or the financing of possible acquisitions. The applicable prospectus supplement relating to a particular offering of securities by us will identify the particular use of proceeds for that offering. Until we use the net proceeds from an offering, we may place the net proceeds in temporary investments or hold the net proceeds in deposit accounts at a banking subsidiary of the Company.
DESCRIPTION OF SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the common stock, preferred stock, debt securities, warrants, depositary shares, subscription rights, stock purchase contracts, stock purchase units and units that we may offer and sell from time to time. When one or more of these securities are offered in the future, a prospectus supplement will explain the particular terms of the securities and the extent to which these general provisions may apply. These summary descriptions and any summary descriptions in any applicable prospectus supplement do not purport to be complete descriptions of the terms and conditions of each security and are qualified in their entirety by reference to our Certificate of Incorporation, as amended, which we refer to as our Certificate of Incorporation, our Bylaws, as amended, which we refer to as our Bylaws, the Delaware General Corporation Law and any other documents referenced in such summary descriptions and from which such summary descriptions are derived. If any particular terms of a security described in any applicable prospectus supplement differ from any of the terms described in this prospectus, then the terms described in this prospectus will be deemed superseded by the terms set forth in that prospectus supplement.
We may issue securities in book-entry form through one or more depositaries, such as The Depository Trust Company, Euroclear or Clearstream, named in an applicable prospectus supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable depositary, unless otherwise stated. We will issue the securities in registered form, without coupons, although we may issue the securities in bearer form if so specified in an applicable prospectus supplement. If any securities are to be listed or quoted on a securities exchange or quotation system, an applicable prospectus supplement will say so.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the material terms, limitations, voting powers and relative rights of our capital stock as contained in our Certificate of Incorporation, which is incorporated by reference herein. This summary does not purport to be a complete description of the terms and conditions of our capital stock in all respects and is subject to and qualified in its entirety by reference to our Certificate of Incorporation, our Bylaws, the Delaware General Corporation Law and any other documents referenced in the summary descriptions and from which the summary descriptions are derived. Although we believe this summary covers the material terms and provisions of our capital stock set forth in our Certificate of Incorporation, it may not contain all of the information that is important to you.
Authorized Shares of Capital Stock
We have the authority to issue 20,000,000 shares of common stock, $1.00 par value per share, and 250,000 shares of preferred stock, $1.00 par value per share. As of August 1, 2023, we had 16,715,515 shares of common stock and no shares of preferred stock issued and outstanding.
Common Stock
Dividend Rights. Holders of our common stock are entitled to receive any cash dividends that may be declared by our board of directors. We are subject to various regulatory policies and requirements relating to the payment of dividends, including requirements to maintain adequate capital above regulatory minimums. Subject to these restrictions, the declaration and payment of future dividends to holders of our common stock will be at the discretion of our board of directors and will depend upon our earnings and financial condition, our capital requirements and those of our subsidiaries, regulatory conditions and considerations
and other factors as our board of directors may deem relevant. No cash dividends will be paid with respect to our common stock for any period unless dividends for the same period, and any accumulated but unpaid dividends, with respect to any outstanding series of our preferred stock having preferential rights with respect to dividends have been paid.
Voting Rights. Each share of common stock entitles the holder thereof to one vote per share on all matters on which the holders of our common stock are entitled to vote. The common stock does not have cumulative voting rights.
Liquidation Rights. In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, the holders of common stock are entitled to receive, pro rata, our assets which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
Preemptive Rights. The holders of our common stock have no preemptive rights.
Miscellaneous. Shares of our common stock are not convertible into shares of any other class of capital stock. The issued and outstanding shares of our common stock are fully paid and nonassessable.
Preferred Stock
General. We may issue up to 250,000 shares of preferred stock, $1.00 par value per share, from time to time in one or more series. Our board of directors, without further approval of our stockholders, has the authority to fix the dividend rights and terms, conversion rights, voting rights, redemption rights and terms, liquidation preferences, preemption rights, sinking funds and any other rights, preferences, privileges and restrictions applicable to each series of preferred stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of our common stock.
We will describe the particular terms of any series of preferred stock being offered in an applicable prospectus supplement relating to that series of preferred stock. Those terms may include:
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the number of shares being offered;
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the title and liquidation preference per share;
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the purchase price;
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the dividend rate or method for determining that rate;
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the dates on which dividends will be paid;
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whether dividends will be cumulative or noncumulative and, if cumulative, the dates from which dividends will begin to accumulate;
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any applicable redemption or sinking fund provisions;
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any applicable conversion provisions;
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any applicable preemption rights;
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any applicable right to designate members of our board of directors;
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whether we have elected to offer depositary shares with respect to that series of preferred stock; and
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any additional dividend, liquidation, transfer and other rights and restrictions applicable to that series of preferred stock.
The shares of preferred stock will, when issued against full payment of their purchase price, be fully paid and nonassessable.
Dividend Rights. If you purchase preferred stock being offered by use of this prospectus and an applicable prospectus supplement, you will be entitled to receive, when, as and if declared by our board of directors, dividends at the rates and on the dates set forth in that prospectus supplement. Dividend rates may be fixed, variable or both. The nature, amount, rates, timing and other details of dividend rights for a
series of preferred stock will be described in an applicable prospectus supplement and will be payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of our stock, as described in that prospectus supplement. We are subject to various regulatory policies and requirements relating to the payment of dividends, including requirements to maintain adequate capital above regulatory minimums.
Voting Rights. The voting rights of preferred stock of any series being offered will be described in an applicable prospectus supplement.
Liquidation Rights. In the event that we liquidate, dissolve or wind-up our affairs, either voluntarily or involuntarily, holders of our preferred stock will be entitled to receive liquidating distributions in the amount set forth in an applicable prospectus supplement, plus accrued and unpaid dividends, if any, before we make any distribution of assets to the holders of our common stock or any junior preferred stock. If we fail to pay in full all amounts payable with respect to preferred stock being offered by us and any stock having the same rank as that series of preferred stock, the holders of the preferred stock and of that other stock will share in any distribution of assets in proportion to the full respective preferential amounts to which they are entitled. After the holders of each series of preferred stock and any stock having the same rank as the preferred stock are paid in full, they will have no right or claim to any of our remaining assets. For any series of preferred stock being offered by this prospectus and an applicable prospectus supplement, neither the sale of all or substantially all of our property or business nor a merger or consolidation by us with any other corporation will be considered a dissolution, liquidation or winding-up of our business or affairs.
Redemption. The terms, if any, on which shares of a series of preferred stock being offered may be redeemed will be described in an applicable prospectus supplement. The preferred stock of a series may be redeemed in such amount or amounts, and at such time or times, if any, as may be provided in respect of that particular series of preferred stock. Preferred stock may be redeemed by the Company only to the extent legally permissible.
Conversion Rights. An applicable prospectus supplement will state the terms, if any, on which shares of a series of preferred stock being offered are convertible into shares of our common stock or another series of our preferred stock.
Anti-Takeover Provisions
General. Certain provisions of our Certificate of Incorporation, our Bylaws and the Delaware General Corporation Law may have the effect of impeding the acquisition of control of the Company by means of a tender offer, a proxy fight, open-market purchases or otherwise in a transaction not approved by our board of directors. These provisions may have the effect of discouraging a future takeover attempt which is not approved by our board of directors but which individual stockholders may deem to be in their best interests or in which our stockholders may receive a substantial premium for their shares over then-current market prices. As a result, stockholders who might desire to participate in such a transaction may not have an opportunity to do so. Such provisions will also render the removal of our current board of directors or management more difficult.
Certificate of Incorporation; Bylaws. These provisions of our Certificate of Incorporation and our Bylaws include the following:
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Our board of directors may issue additional authorized shares of our capital stock to deter future attempts to gain control of the Company, and have the authority to determine the terms of any one or more series of preferred stock, such as voting rights, conversion rates and liquidation preferences. As a result of the ability to fix voting rights for a series of preferred stock, our board has the power, to the extent consistent with its fiduciary duties, to issue a series of preferred stock to persons friendly to management in order to attempt to block a merger or other transaction by which a third party seeks control, and thereby assist the incumbent board of directors and management to retain their respective positions;
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Our Certificate of Incorporation does not provide for cumulative voting for any purpose, and our Certificate of Incorporation also provides that any action required or permitted to be taken by
stockholders may be taken only at an annual or special meeting and prohibits stockholder action by written consent in lieu of a meeting unless authorized by not less than 80% of the directors;
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Certain transactions (including any merger or consolidation, the sale, lease or exchange of all of substantially all assets, any issuance or transfer of any voting securities to any other entity in exchange for cash, assets or securities, and the voluntary dissolution of the Company) must be approved by at least 75% of the outstanding voting stock, unless approved by not less than 80% of the directors;
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When evaluating a proposal by another person to make a tender or exchange offer for an equity security, to merge or consolidate with us or to purchase or otherwise acquire all or substantially all of our assets, our Certificate of Incorporation allows the board of directors to consider non-stockholder interests, such as the social and economic effects of the transaction on us and our subsidiaries and the other elements of the communities in which we and our subsidiaries operate or are located; and
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The amendment of our Certificate of Incorporation must be approved by a majority vote of the board of directors and also by a majority vote of the outstanding shares of our common stock, provided, however, that an affirmative vote of at least 75% of the outstanding voting stock entitled to vote is required to amend or repeal certain provisions of our Certificate of Incorporation, including provisions (a) governing amendment of our Bylaws, (b) relating to the use of written ballots, (c) limiting business combinations with interested stockholders, (d) limiting the stockholders’ ability to act by written consent, and (e) regarding amendment of the foregoing supermajority provisions of our Certificate of Incorporation. Our Bylaws may be amended only by vote of 80% of the board of directors or by affirmative vote of not less than 75% of the outstanding shares of stock then entitled to vote.
Delaware Law. As we have not elected to opt out of the applicability of Section 203 of the Delaware General Corporation Law in our Certificate of Incorporation, we are currently governed by this section of Delaware law. Under Section 203 of the Delaware General Corporation Law, subject to exceptions, we are prohibited from engaging in any business combination with any interested stockholder for a period of three years following the time that the stockholder became an interested stockholder. For this purpose, an “interested stockholder” generally includes current and certain former holders of 15% or more of our outstanding stock. The provisions of Section 203 may encourage companies interested in acquiring us to negotiate in advance with our board of directors. These provisions may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests.
Banking Laws. The ability of a third party to acquire the Company is also subject to applicable banking laws and regulations. The Bank Holding Company Act of 1956, which we refer to as the BHCA, and the regulations thereunder require any “bank holding company” (as defined in the BHCA) to obtain the approval of the Federal Reserve prior to acquiring more than 5% of the outstanding shares of a class of our voting stock. Any person other than a bank holding company is required to obtain prior approval of the Federal Reserve to acquire 10% or more of the outstanding shares of a class of our voting stock under the Change in Bank Control Act of 1978. Federal law also prohibits any person or company from acquiring “control” of an FDIC-insured depository institution or its holding company without prior notice to the appropriate federal bank regulator. “Control” is conclusively presumed to exist upon the acquisition of 25% or more of the outstanding voting securities of a bank or bank holding company, but may arise under certain circumstances between 10% and 24.99% ownership. For purposes of calculating ownership thresholds under these banking regulations, bank regulators would likely at least take the position that the minimum number of shares, and could take the position that the maximum number of shares, of the Company’s common stock that a holder is entitled to receive pursuant to securities convertible into or settled in the Company’s common stock, including pursuant to the Company’s warrants to purchase the Company’s common stock held by such holder, must be taken into account in calculating a stockholder’s aggregate holdings of the Company’s common stock.
Sole and Exclusive Forum
Our Bylaws provide that, unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for: (i) any
derivative action or proceeding brought on behalf of the Company; (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the Company to the Company or the Company’s stockholders; (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware, our Certificate of Incorporation or our Bylaws; or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and consented to this provision of our Bylaws. However, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. In addition, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. As a result, there is uncertainty as to whether a court would enforce such a provision, and our stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder.
DESCRIPTION OF DEBT SECURITIES
General
The debt securities that we may offer using this prospectus consist of notes, debentures or other evidences of indebtedness. Any debt securities that we offer and sell will be our direct obligations. Debt securities may be issued in one or more series. All debt securities of any one series need not be issued at the same time, and unless otherwise provided, a series of debt securities may be reopened for issuance of additional debt securities of that series and all debt securities of the same series, will be substantially identical, except for the initial interest payment date, issue price, initial interest accrual date and the amount of the first interest payment. The form of indenture is subject to any amendments or supplements that we may enter into with the trustee(s). The material terms of the indenture are summarized below and we refer you to the indenture for a detailed description of these material terms. Additional or different provisions that are applicable to a particular series of debt securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that series. These provisions may include, among other things and to the extent applicable, the following:
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the title of the debt securities of the series, including, as applicable, whether the debt securities of the series will be issued as senior debt securities, senior subordinated debt securities or subordinated debt securities; any subordination provisions particular to the debt securities of the series, and whether the debt securities of the series are convertible or exchangeable for other securities;
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any limit upon the aggregate principal amount of the debt securities of the series that may be authenticated and delivered;
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if other than 100% of its aggregate principal amount, the percentage of the aggregate principal amount at which the debt securities of the series will be offered;
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the date or dates (whether fixed or extendable) on which the principal of the debt securities of the series is payable;
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the rate or rates, which may be fixed or variable, at which the debt securities of the series will bear interest, if any, the date or dates from which such interest will accrue, the interest payment dates on which such interest will be payable, the basis upon which interest will be calculated if other than that of a 360-day year consisting of twelve 30-day months and the record dates for the determination of holders to whom interest is payable;
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any provisions relating to the issuance of the debt securities of the series at an original issue discount;
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the place or places where the principal of and interest on debt securities of the series will be payable and where debt securities of the series may be surrendered for conversion or exchange;
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whether any of such debt securities of the series may be redeemable at our option, and if so, the price or prices at which, the period or periods within which and the terms and conditions upon which
debt securities of the series may be so redeemed, in whole or in part, at our option, pursuant to any sinking fund or otherwise;
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if other than 100% of the aggregate principal amount thereof, the portion of the principal amount of the debt securities of the series which will be payable upon declaration of acceleration of the maturity date thereof or provable in bankruptcy, or, if applicable, which is convertible or exchangeable;
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any obligation we may have to redeem, purchase or repay debt securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof, and the price or prices at which, the currency in which and the period or periods within which, and the terms and conditions upon which, debt securities of the series will be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation (including the terms or method of payment thereof if other than cash), and any provision for the remarketing of the debt securities;
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if other than denominations of $1,000 and any integral multiple thereof, the denominations, which may be in U.S. dollars or any foreign currency, in which debt securities of the series will be issuable;
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whether the debt securities of the series will be certificated and, if so, the form of the debt securities (or forms thereof if both unregistered debt securities and registered debt securities will be issuable in such series), including such legends as required by law or as we deem necessary or appropriate, the form of any coupons or temporary global security which may be issued and the forms of any other certificates which may be required or which we may require in connection with the offering, sale, delivery or exchange of the debt securities;
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if other than U.S. dollars, the currency or currencies in which payments of interest, principal and other amounts payable with respect to the debt securities of the series are to be denominated, payable, redeemable or repurchasable, as the case may be;
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whether debt securities of the series are issuable in tranches;
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any obligations we may have to permit the conversion or exchange of the debt securities of such series into common stock, preferred stock or other capital stock or property (including securities), or a combination thereof, and the terms and conditions upon which such conversion will be effected (including the initial conversion or exchange price or rate, the conversion or exchange period, the provisions for conversion or exchange price or rate adjustments and any other provisions relative to such obligation) and any limitations on the ownership or transferability of the securities or property into which the debt securities may be converted or exchanged;
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any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the debt securities of such series;
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any deletions from, modifications of or additions to (i) the events of default with respect to debt securities of the series or (ii) the right of the trustee or the holders of such debt securities;
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any deletions from, modifications of or additions to the covenants with respect to debt securities of the series;
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if the amount of payments of principal of, and make-whole amount, if any, and interest on, the debt securities of the series may be determined with reference to an index, the manner in which such amount will be determined;
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whether the debt securities of the series will be issued in whole or in part in the global form of one or more debt securities and in such case, (i) the depositary for such debt securities, (ii) the circumstances under which any such debt securities may be exchanged for debt securities registered in the name of, and under which any transfer of such debt securities may be registered in the name of, any person other than such depositary or its nominee, and (iii) any other provisions regarding such debt securities which provisions may be in addition to or in lieu of, in whole or in part, the provisions of the indenture;
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whether, under what circumstances and the currency in which, we will pay additional amounts on the debt securities of the series to any holder who is not a U.S. person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so,
whether we will have the option to redeem such debt securities rather than pay such additional amounts (and the terms of any such option);
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whether the debt securities of the series, in whole or in specified part, will not be defeasible, and, if the debt securities may be defeased, in whole or in specified part, any provisions to permit a pledge of obligations other than U.S. government obligations (or the establishment of other arrangements) to satisfy the requirements of the indenture for defeasance of the debt securities and, if other than by a board resolution, the manner in which any election by us to defease the debt securities will be evidenced;
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whether the debt securities of such series are to be secured by any property, assets or other collateral and, if so, the applicable collateral;
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the person to whom any interest on the debt securities of such series will be payable, if other than the securityholder thereof, on the regular record date therefor;
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the dates on which interest, if any, will be payable and the regular record dates for interest payment dates;
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any restrictions, conditions or requirements for transfer of the debt securities; and
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any other material terms or conditions upon which the debt securities will be issued.
Unless otherwise indicated in an applicable prospectus supplement, we will issue debt securities in fully registered form without coupons and in minimum denominations of $1,000 and in integral multiples of $1,000, and interest will be computed on the basis of a 360-day year of twelve 30-day months. If any interest payment date or the maturity date falls on a day that is not a business day, then the payment will be made on the next business day without additional interest and with the same effect as if it were made on the originally scheduled date.
Unless otherwise indicated in an applicable prospectus supplement, the trustee will act as paying agent and registrar for the debt securities under the indenture. We may also act as paying agent under the indenture.
An applicable prospectus supplement will contain a description of U.S. federal income tax consequences relating to the debt securities, to the extent applicable.
Covenants
An applicable prospectus supplement will describe any covenants, such as restrictive covenants restricting us or any of our subsidiaries from incurring, issuing, assuming or guarantying any indebtedness, restricting us or any of our subsidiaries from paying dividends or acquiring any of our or its capital stock, requiring the maintenance of any asset ratio or the creation or any maintenance of any reserves, or restricting the incurrence of additional debt or the issuance of additional securities.
Consolidation, Merger and Sale of Assets
Unless we indicate otherwise in an applicable prospectus supplement, we may not consolidate with or merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of our properties and assets to, any person, which we refer to as a successor person, unless:
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we are the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of the U.S. or any state or the District of Columbia and expressly assumes, by a supplemental indenture, executed and delivered to the trustee, in form satisfactory to the trustee our obligations on the debt securities;
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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and be continuing under the indenture; and
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we have complied with our obligations to deliver certain documentation to the trustee.
If we consolidate or merge with or into any other entity, or sell or lease all or substantially all of our assets in compliance with the terms and conditions of the indenture, the resulting or acquiring entity will be
substituted for us in the indenture and the debt securities with the same effect as if it had been an original party to the indenture and the debt securities. As a result, such successor entity may exercise our rights and powers under the indenture and the debt securities, in our name, and we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Modification and Waiver
Unless we indicate otherwise in an applicable prospectus supplement, we and the trustee may modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of a series. We may not make any modification or amendment without the consent of the holder of each debt security affected thereby if such amendment will:
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change the scheduled maturity date or the stated payment date of any payment of premium or interest payable on the debt securities, or reduce the principal amount thereof, or any amount of interest or premium payable thereon;
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change the method of computing the amount of principal of the debt securities or any interest payable thereon on any date, or change any place of payment where, or the coin or currency in which, the debt securities or any payment of premium or interest thereon is payable;
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impair the right to institute suit for the enforcement of any payment on or after the same shall become due and payable, whether at maturity or, in the case of redemption or repayment, on or after the redemption date or the repayment date, as the case may be;
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change or waive the redemption or repayment provisions of the debt securities;
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reduce the percentage in principal amount of the outstanding securities of the debt securities, the consent of whose holders is required for any such supplemental indenture, or the consent of whose holders is required for any waiver of compliance with certain provisions of the indenture or certain defaults thereunder and their consequences provided for in the indenture;
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subject to certain exceptions, modify any of the provisions of certain sections of the indenture, except to increase any such percentage or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each outstanding security affected thereby;
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adversely affect the ranking or priority of the debt securities;
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release any guarantor or co-obligor from any of its obligations under its guarantee of the securities or the indenture, except in compliance with the terms of the indenture; or
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waive any event of default or event which, after notice of lapse of time, or both, would become an event of default, in respect of the payment of the principal of or interest on the debt securities.
Except for certain specified provisions, the holders of at least a majority in principal amount of any series of debt securities may on behalf of all such holders waive our compliance with provisions of the indenture or such series of debt securities. The holders of a majority in principal amount of any series of debt securities may on behalf of all such holders waive any past default under the indenture with respect to the series and its consequences, except a default in the payment of the principal of or any interest on any debt security or in the payment of any sinking or purchase fund or analogous obligation with respect to the debt securities, or in respect of a covenant or provision that cannot be modified or amended without the consent of the holder of the debt security affected.
In addition, unless otherwise indicated in an applicable prospectus supplement, we and the trustee may modify and amend the indenture without the consent of any holders of debt securities:
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to evidence the succession of another corporation to the Company, or successive successions, and the assumption by any such successor of the covenants, agreements and obligations of the Company in the indenture and in the securities;
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to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the holders of the debt securities as the Company and the trustee shall consider to be
for the protection of the holders of the debt securities or to surrender any right or power herein conferred upon the Company;
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to cure any ambiguity, to correct or supplement any provision in the indenture which may be inconsistent with any other provision in the indenture or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under the indenture that do not adversely affect the interests of the holders of debt securities in any material respect as determined by us and evidenced by an officer’s certificate delivered to the trustee;
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to add to the indenture such provisions as may be expressly permitted by the Trust Indenture Act of 1939, as amended, which we refer to as the Trust Indenture Act, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which the indenture is executed or any corresponding provision in any similar federal statute hereafter enacted;
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to add guarantors or co-obligors with respect to the debt securities;
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to secure the debt securities;
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to add to the rights of the holders of the debt securities;
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to evidence and provide for the acceptance of appointment by another corporation as a successor trustee under the indenture with respect to the debt securities and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee;
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to add any additional events of default in respect of the debt securities;
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to comply with the requirements of the SEC in connection with the qualification of the indenture under the Trust Indenture Act;
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to make any change in the debt securities that does not adversely affect in any material respect the interests of the holders of such securities as determined by us and evidenced by an officer’s certificate delivered to the trustee; or
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to delete, modify or add provisions of the indenture, provided that such deletion, modification or addition does not apply to any outstanding debt securities issued prior to such deletion, modification or addition.
Events of Default
Unless we indicate otherwise in an applicable prospectus supplement, an event of default will occur with respect to the debt securities upon the occurrence of any of the following:
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default in the payment of any interest on the debt securities when it becomes due and payable, and continuance of such default for a period of 30 days;
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default in the payment of the principal of or premium, if any, on the debt securities as and when the same shall become due, either at its maturity, upon redemption, by declaration or otherwise;
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default in the payment of any sinking or purchase fund or analogous obligation when the same becomes due, and continuance of such default for a period of 30 days;
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default in the performance, or breach, of any covenant or warranty of the Company in the indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in the indenture specifically dealt with or which has expressly been included in the indenture solely for the benefit of series of securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given to the Company by the trustee or to the Company and the trustee by the holders of at least 25% in principal amount of the outstanding securities of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”;
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the entry of an order for relief against the Company under the U.S. Bankruptcy Code by a court having jurisdiction in the premises or a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent under any other applicable federal or state law, or
the entry of a decree or order approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the U.S. Bankruptcy Code or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or
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the consent by the Company to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the U.S. Bankruptcy Code or any other applicable federal or state law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action.
The occurrence of an event of default may constitute an event of default under our bank credit agreements in existence from time to time. In addition, the occurrence of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding from time to time.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities. Notwithstanding the foregoing, the indenture provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any of the holders of outstanding debt securities, unless the trustee receives security and indemnity satisfactory to it against any costs, liabilities or expenses which might be incurred by it in compliance with such request, order or direction.
Satisfaction and Discharge; Defeasance
Satisfaction and Discharge of Indenture. Unless otherwise indicated in an applicable prospectus supplement, if at any time,
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we have paid the principal of and interest on all the debt securities, except for debt securities which have been destroyed, lost or stolen and which have been replaced or paid in accordance with the indenture, as and when the same has become due and payable;
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we have delivered to the trustee for cancellation all debt securities theretofore authenticated, except for debt securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in the indenture; or
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all the debt securities not theretofore delivered to the trustee for cancellation have become due and payable, or are by their terms are to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee, in trust, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums due on the debt securities, on the dates the payments are due or become due under the indenture and the terms of the debt securities;
and if we have complied with our obligations to deliver certain documentation to the trustee, then the indenture shall cease to be of further effect with respect to the debt securities, except for (a) rights of registration of transfer and exchange, and our right of optional redemption, (b) substitution of mutilated, defaced, destroyed, lost or stolen debt securities, (c) rights of holders to receive payments of principal thereof and interest thereon upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any, (d) the rights, obligations and immunities of the trustee under the indenture, and (e) the rights of the holders of debt securities as beneficiaries thereof with respect to the property so deposited with the trustee payable to all or any of them.
Legal Defeasance and Covenant Defeasance. Unless otherwise indicated in an applicable prospectus supplement, we may elect with respect to any debt securities of any series to defease and be discharged from all of our obligations with respect to such debt securities, which we refer to as legal defeasance, except for (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, defaced, destroyed, lost or stolen debt securities, (iii) rights of holders to receive payments of principal thereof and interest thereon upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the trustee under the indenture, (v) the provisions in the indenture related to (a) legal defeasance, (b) the return of any amounts held in trust for payment on such series of debt securities, (c) the obligation of the Company to maintain an office or agency and (d) the obligation of the Company to hold payments on such series of debt securities in trust, and (vi) the rights of the holders of such series of debt securities as beneficiaries thereof with respect to the property so deposited with the trustee payable to all or any of them.
Unless otherwise indicated in an applicable prospectus supplement, we may elect to have our obligations released with respect to certain covenants in the indenture, which we refer to as covenant defeasance. If we so elect, any failure to comply with these obligations will not constitute a default or an event of default with respect to the debt securities of any series. In the event covenant defeasance occurs, certain events, not including non-payment, bankruptcy and insolvency events, described under the heading “Events of Default,” will no longer constitute an event of default for that series.
In order to exercise either legal defeasance or covenant defeasance with respect to outstanding debt securities of any series, we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities of a series:
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money in an amount; or
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U.S. government obligations (or equivalent government obligations in the case of debt securities denominated in other than U.S. dollars or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or
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a combination of money and U.S. government obligations (or equivalent government obligations, as applicable), in each case sufficient, in the written opinion (with respect to U.S. or equivalent government obligations or a combination of money and U.S. or equivalent government obligations, as applicable) of a nationally recognized firm of independent public accountants to pay and discharge, and which shall be applied by the trustee to pay and discharge, all of the principal (including mandatory sinking fund payments), interest and any premium at due date or maturity.
In order to exercise either legal defeasance or covenant defeasance with respect to outstanding debt securities of any series, the following conditions must be met:
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in the case of legal defeasance, we must have delivered to the trustee an opinion of counsel stating that, under then applicable federal income tax law, the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
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in the case of covenant defeasance, we must have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur;
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no event of default or default with respect to the outstanding debt securities of that series has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;
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the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all debt securities of a series were in default within the meaning of such Act;
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the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration;
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the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are a party;
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if prior to the stated maturity date, notice shall have been given in accordance with the provisions of the indenture; and
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we must have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with respect to the legal defeasance or covenant defeasance have been complied with.
An applicable prospectus supplement may further describe any provisions permitting or restricting defeasance or covenant defeasance with respect to the debt securities of a particular series.
Global Securities
Unless otherwise indicated in an applicable prospectus supplement, each debt security offered by this prospectus will be issued in the form of one or more global debt securities representing all or part of that series of debt securities. This means that we will not issue certificates for that series of debt securities to the holders. Instead, a global debt security representing that series will be deposited with, or on behalf of, a securities depositary and registered in the name of the depositary or a nominee of the depositary. Any such depositary must be a clearing agency registered under the Exchange Act. We will describe the specific terms of the depositary arrangement with respect to a series of debt securities to be represented by a global security in the prospectus supplement relating to such series of debt securities.
Notices
We will give notices to holders of the debt securities by mail at the addresses listed in the security register. In the case of notice in respect of unregistered securities or coupon securities, we may give notice by publication in a newspaper of general circulation in New York, New York.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York, except to the extent the Trust Indenture Act of 1939 is applicable.
Regarding the Trustee
General. From time to time, we may maintain deposit accounts and conduct other banking transactions with the trustee to be appointed under the indenture or its affiliates in the ordinary course of business.
Resignation or Removal of Trustee. If the trustee has or acquires a conflicting interest within the meaning of the Trust Indenture Act, the trustee must either eliminate its conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the indenture. Any resignation will require the appointment of a successor trustee under the indenture in accordance with the terms and conditions of the indenture.
The trustee may resign or be removed by us with respect to one or more series of debt securities and a successor trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the debt securities of any series may remove the trustee with respect to the debt securities of such series.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock, common stock, other securities of the Company or any combination of the foregoing. Warrants may be issued alone or together with securities offered by any prospectus supplement and may be attached to, or separate from, those securities. The particular terms of any warrants will be described more specifically in the prospectus supplement relating to such warrants.
A prospectus supplement relating to any warrants we are offering will include specific terms relating to that offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you. An applicable prospectus supplement will include some or all of the following information:
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the title and specific designation of the warrants;
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the aggregate number of warrants offered;
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the amount of warrants outstanding, if any;
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the designation, number and terms of the securities purchasable upon exercise of the warrants, and procedures that will result in the adjustment of those numbers;
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the exercise price or prices of the warrants;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable;
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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the anti-dilution, redemption or call provisions of the warrants, if any;
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if applicable, the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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any other material terms of the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting rights, if any.
DESCRIPTION OF DEPOSITARY SHARES
The following is a summary of the general terms of the deposit agreement to govern any depositary shares we may offer representing fractional interests in shares of our preferred stock, the depositary shares themselves and the related depositary receipts. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the relevant deposit agreement and depositary receipt with respect to the depositary shares relating to any particular series of preferred stock. A copy of the deposit agreement and form of depositary receipt relating to any depositary shares we issue will be filed with the SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a filing incorporated by reference in the registration statement. The specific terms of any depositary shares we may offer will be described in an applicable prospectus supplement. If so described in such applicable prospectus supplement, the terms of that series of depositary shares may differ from the general description of terms presented below.
General
We may offer fractional interests in shares of our preferred stock, rather than full shares of preferred stock, most likely in the event that our then authorized but yet undesignated shares of preferred stock is not sufficient to offer full shares of preferred stock. If we do, we will provide for the issuance by a depositary to the public of receipts for depositary shares, each of which will represent a fractional interest in a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company having its principal office in the U.S., which we refer to in this section as the depositary. The depository will have a combined capital and surplus of such amount as may be set forth in an applicable prospectus supplement. We will name the depositary in such applicable prospectus supplement. Subject to the terms of the deposit agreement, each owner of a depositary share will have a fractional interest in all the rights and preferences of the preferred stock underlying the depositary share. Those rights include any dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under the deposit agreement. If you purchase fractional interests in shares of the related series of preferred stock, you will receive depositary receipts as described in an applicable prospectus supplement.
Unless we specify otherwise in an applicable prospectus supplement, you will not be entitled to receive the whole shares of preferred stock underlying the depositary shares.
Dividend Rights
The depositary will distribute all cash dividends or other cash distributions in respect of the preferred stock underlying the depositary shares to each record holder of depositary shares based on the number of the depositary shares owned by that holder on the relevant record date. The depositary will distribute only that amount which can be distributed without attributing to any holder of depositary shares a fraction of one cent, and any balance not so distributed will be added to and treated as part of the next sum received by the depositary for distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will distribute property to the entitled record holders of depositary shares, unless the depositary determines that it is not feasible to make that distribution. In that case the depositary may, with our approval, adopt the method it deems equitable and practicable for making that distribution, including any sale of property and distribution of the net proceeds from this sale to the applicable holders.
The deposit agreement will also contain provisions relating to how any subscription or similar rights offered by us to holders of the preferred stock will be made available to the holders of depositary shares.
Voting Rights
When the depositary receives notice of any meeting at which the holders of the preferred stock may vote, the depositary will mail information about the meeting contained in the notice, and any accompanying proxy materials, to the record holders of the depositary shares relating to the preferred stock. Each record holder of such depositary shares on the record date, which will be the same date as the record date for the preferred stock, will be entitled to instruct the depositary as to how the preferred stock underlying the holder’s depositary shares should be voted.
Conversion or Exchange Rights
If any series of preferred stock underlying the depositary shares is subject to conversion or exchange, an applicable prospectus supplement will describe the rights or obligations of each record holder of depositary receipts to convert or exchange the depositary shares.
Redemption
If the series of the preferred stock underlying the depositary shares is subject to redemption, all or a part of the depositary shares will be redeemed from the redemption proceeds of that series of the preferred
stock held by the depositary. The redemption price per depositary share will bear the same relationship to the redemption price per share of preferred stock that the depositary share bears to the underlying preferred stock. Whenever we redeem preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock redeemed. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will cease, except the right to receive money or other property that the holders of the depositary shares were entitled to receive upon the redemption. Payments will be made when holders surrender their depositary receipts to the depositary.
Taxation
Owners of depositary shares will be treated for U.S. federal income tax purposes as if they were owners of the preferred stock represented by the depositary shares. If necessary, an applicable prospectus supplement will provide a description of U.S. federal income tax consequences relating to the purchase and ownership of the depositary shares and the preferred stock represented by the depositary shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between us and the depositary at any time. However, certain amendments as specified in an applicable prospectus supplement will not be effective unless approved by the record holders of at least a majority of the depositary shares then-outstanding. A deposit agreement may be terminated by us or the depositary only if:
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all outstanding depositary shares relating to the deposit agreement have been redeemed; or
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there has been a final distribution on the preferred stock of the relevant series in connection with our liquidation, dissolution or winding up of our business and the distribution has been distributed to the holders of the related depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay associated charges of the depositary for the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges that are stated to be their responsibility in the deposit agreement.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us. We may also remove the depositary at any time. Resignations or removals will take effect when a successor depositary is appointed and it accepts the appointment.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The following is a summary of the general terms of the subscription rights to purchase common stock or other securities that we may offer to stockholders using this prospectus. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the applicable forms of subscription agent agreement and subscription certificate for a full understanding of all terms of any series of subscription rights.
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of any subscription rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such subscription rights offering. If we issue subscription rights, they will be governed by a separate subscription agent agreement that we will sign with a bank or trust company, as rights agent, that will be named in an applicable prospectus supplement relating to such subscription rights. The rights agent will act solely as our agent and will not assume any obligation to any holders of subscription rights certificates or beneficial owners of subscription rights.
The prospectus supplement relating to any subscription rights we offer will describe the specific terms of the offering and the subscription rights, including the record date for stockholders entitled to the subscription rights distribution, the number of subscription rights issued and the number of shares of common stock or other securities that may be purchased upon exercise of the subscription rights, the exercise price of the subscription rights, the date on which the subscription rights will become effective and the date on which the subscription rights will expire, and any material U.S. federal income tax considerations.
In general, a subscription right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued to stockholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
•
the record date for stockholders entitled to receive the subscription rights;
•
the number of shares of common stock or other securities that may be purchased upon exercise of each subscription right;
•
the exercise price of the subscription rights;
•
whether the subscription rights are transferable;
•
the period during which the subscription rights may be exercised and when they will expire;
•
the steps required to exercise the subscription rights;
•
whether the subscription rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments; and
•
whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement.
If fewer than all of the subscription rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in an applicable prospectus supplement relating to such subscription rights. After the close of business on the expiration date of a subscription rights offering, all unexercised subscription rights will become void.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a specified number of shares of our common stock or preferred stock at a future date or dates, which we refer to in this prospectus as “Stock Purchase Contracts.” The price per share, and number of shares, of our common stock or preferred stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be issued separately or as a part of units consisting of a Stock Purchase Contract and our debt securities or debt obligations of third parties, including Treasury securities, securing the holders’ obligations to purchase the shares of our common stock under the Stock Purchase Contracts, which we refer to in this prospectus as “Stock Purchase Units.” The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. The Stock Purchase Contracts also may require us to make periodic payments to the holders of the Stock Purchase Units or vice-versa and such payments may be unsecured or prefunded on some basis.
An applicable prospectus supplement will describe the terms of any Stock Purchase Contracts or Stock Purchase Units. The description in such prospectus supplement will not necessarily be complete, and reference will be made to the Stock Purchase Contracts, and, if applicable, collateral or depositary arrangements, relating to the Stock Purchase Contracts or Stock Purchase Units. Material U.S. federal income tax considerations applicable to the Stock Purchase Units and the Stock Purchase Contracts will also be discussed in such prospectus supplement.
DESCRIPTION OF UNITS
As specified in an applicable prospectus supplement, we may issue units consisting of one or more debt securities, shares of common stock, shares of preferred stock or warrants or any combination of such securities, including guarantees of any securities.
A prospectus supplement and any other offering materials relating to any units issued under the registration statement containing this prospectus will specify the terms of the units, including:
•
the terms of the units and of any of the debt securities, common stock, preferred stock, warrants and guarantees comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
•
a description of the terms of any unit agreement governing the units; and
•
a description of the provisions for the payment, settlement, transfer or exchange of the units.
PLAN OF DISTRIBUTION
We may sell the securities covered by this prospectus from time to time at market prices prevailing at the time of sale, at prices related to such prevailing market prices at the time of sale, at negotiated prices or at fixed prices, which may change from time to time. We may sell the securities directly to one or more purchasers, through agents, to dealers, through underwriters, brokers or dealers, or through a combination of any of these sales methods or through any other method permitted by law (including in “at the market” equity offerings as defined in Rule 415 of the Securities Act). We reserve the right to accept or reject, in whole or in part, any proposed purchase of securities, whether the purchase is to be made directly or through agents.
Each time that we use this prospectus to sell our securities, we will also provide a prospectus supplement, if required, that contains the specific terms of the offering, including:
•
the name or names of the underwriters, dealers or agents, if any, and the types and amounts of securities underwritten or purchased by each of them;
•
the public offering price of the securities and the proceeds we will receive from the sale;
•
any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts or other items constituting agents’ or underwriters’ compensation;
•
any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
•
any securities exchange or market on which the securities may be listed.
Only underwriters that we have named in a prospectus supplement will be underwriters of the securities offered by that prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in an applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by an applicable prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe any such material relationship in an applicable prospectus supplement, naming the underwriter and the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in an prospectus supplement. Unless such prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in an applicable prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in such prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common stock or other outstanding securities, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Under the securities laws of some states, to the extent applicable, the securities may be sold in such states only through registered or licensed brokers or dealers. In addition, if our common stock is no longer listed on the Nasdaq Global Market or another national securities exchange, in some states the securities may not be sold unless such securities have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
LEGAL MATTERS
Certain legal matters in connection with any offering of securities made by this prospectus will be passed upon for us by our counsel Barack Ferrazzano Kirschbaum & Nagelberg LLP of Chicago, Illinois. If the securities are being distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the related prospectus supplement.
EXPERTS
The consolidated financial statements of QCR Holdings, Inc. and subsidiaries as of December 31, 2022 and 2021 and for each of the years in the three-year period ended December 31, 2022 and the effectiveness of internal control over financial reporting as of December 31, 2022 incorporated in this prospectus by reference from the QCR Holdings, Inc. Annual Report on Form 10-K for the year ended December 31, 2022 have been audited by RSM US LLP, an independent registered public accounting firm, as stated in their reports thereon incorporated herein by reference, and have been incorporated in this prospectus and Registration Statement in reliance upon such reports and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act and file with the SEC proxy statements, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as required of a U.S. listed company. Our SEC filings are available to the public from the SEC’s web site at www.sec.gov or on our website at www.qcrh.com. However, other than our available SEC filings, the information on, or that can be accessible through, our website does not constitute a part of, and is not incorporated by reference in, this prospectus. Written requests for copies of the documents we file with the SEC should be directed to QCR Holdings, Inc., 500 First Avenue NE, Cedar Rapids, Iowa 52401, Attention: General Counsel and Corporate Secretary, telephone: (319) 551-9630.
This prospectus is part of a registration statement on Form S-3 filed by us with the SEC under the Securities Act. As permitted by the SEC, this prospectus does not contain all the information in the registration statement filed with the SEC. For a more complete understanding of this offering, you should refer to the complete registration statement, including exhibits, on Form S-3 that may be obtained as described above. Statements contained in this prospectus about the contents of any contract or other document are not necessarily complete. If we have filed any contract or other document as an exhibit to the registration statement or any other document incorporated by reference in the registration statement, you should read the exhibit for a more complete understanding of the contract or other document or matter involved. Each statement regarding a contract or other document is qualified in its entirety by reference to the actual contract or other document.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information that we file with it into this prospectus, which means that we can disclose important information to you by referring you to other documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the following documents and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering covered by this prospectus, as well as any filings made after that date of this registration statement of which this prospectus forms a part and prior to the effectiveness of such registration statement, but excluding, in each case, information “furnished” rather than “filed” and information that is modified or superseded by subsequently filed documents prior to the termination of this offering:
•
•
•
•
•
The description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on August 9, 1993, and in Exhibit 4.2 of our Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the SEC on March 13, 2020, including any amendments or reports filed for the purpose of updating such description.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in any subsequently filed document which also is, or is deemed to be, incorporated by reference in this prospectus modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, without charge, upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus and a copy of any or all other contracts or documents which are referred to in this prospectus but not delivered with this prospectus. Requests should be directed to:
QCR Holdings, Inc.
Attention: Deborah M. Neyens, General Counsel and Corporate Secretary
500 First Avenue NE
Cedar Rapids, Iowa 52401
Telephone: (319) 551-9630
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth our estimated expenses to be incurred in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions. We will pay all of these expenses.
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SEC Registration Fee
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$ |
* |
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Trustee Fees
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** |
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Printing Expenses
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** |
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Rating Agency Fees
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** |
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Legal Fees and Expenses
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** |
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Accounting Fees and Expenses
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** |
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Miscellaneous
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** |
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Total
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** |
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*
In accordance with Rules 446(b) and 457(r), we are deferring payment of the registration fee for the securities offered by this prospectus.
**
These fees are not presently known and cannot be estimated at this time, as they will be based upon, among other things, the amount and type of security being offered as well as the number of offerings.
Item 15. Indemnification of Directors and Officers
Delaware Law. Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. In the case of an action by or in the right of the corporation, no indemnification may be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or in the defense of any action, suit or proceeding referred to above, or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
Section 102(b)(7) of the Delaware General Corporation Law 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: (a) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) for directors, under Section 174 of the Delaware General Corporation Law (regarding, among other things, the payments of unlawful dividends or unlawful stock repurchases, redemptions or other distributions), (d) for any transactions from which the director or officer derived an improper personal benefit or (e) for an officer, in any actions by or in right of the corporation.
Certificate of Incorporation and Bylaws. Article IX of our Certificate of Incorporation and Section 7.2 of our Bylaws provide that we shall, to the full extent permitted by law, indemnify those persons whom we may indemnify pursuant thereto, and contain provisions substantially similar to Section 145 of the Delaware General Corporation Law.
Liability Insurance. We have obtained directors’ and officers’ liability insurance. The policy provides for $10.0 million in coverage including prior acts dating to the Company’s inception and liabilities under the Securities Act.
Item 16. Exhibits
*
To be filed either by amendment or as an exhibit to a report filed under the Exchange Act, and incorporated herein by reference.
**
To be filed separately under the electronic form type “305B2” pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
Item 17. Undertakings
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;
(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 20 percent 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 this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, 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.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to the registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act, 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.
(7)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939.
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 indemnification provisions described in Item 15 above, 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, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Moline, state of Illinois, on the 18th of August, 2023.
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QCR HOLDINGS, INC.
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By:
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/s/ Todd A. Gipple
Todd A. Gipple
President and Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Larry J. Helling and Todd A. Gipple his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, to sign on his or her behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this registration statement on Form S-3 (including any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and all amendments thereto) and to file the same, with all exhibits thereto and any other documents in connection therewith, with the SEC under the Securities Act of 1933, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as each might or could do in person, hereby ratifying and confirming each act that said attorneys-in-fact and agents 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 in the capacities indicated on August 18, 2023.
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Signature
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Title
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/s/ Marie Z. Ziegler
Marie Z. Ziegler
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Chair of the Board of Directors
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/s/ James M. Field
James M. Field
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Vice Chair of the Board of Directors
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/s/ Larry J. Helling
Larry J. Helling
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Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Todd A. Gipple
Todd A. Gipple
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President, Chief Financial Officer and Director
(Principal Financial Officer)
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/s/ Nick W. Anderson
Nick W. Anderson
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Chief Accounting Officer
(Principal Accounting Officer)
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/s/ John-Paul E. Besong
John-Paul E. Besong
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Director
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/s/ Mary Kay Bates
Mary Kay Bates
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Director
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Signature
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Title
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/s/ Mark C. Kilmer
Mark C. Kilmer
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Director
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/s/ John F. Griesemer
John F. Griesemer
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Director
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/s/ Brent R. Cobb
Brent R. Cobb
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Director
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/s/ Elizabeth S. Jacobs
Elizabeth S. Jacobs
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Director
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/s/ Donna J. Sorensen, J.D.
Donna J. Sorensen, J.D.
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Director
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Exhibit 5.1
August 18,
2023
QCR Holdings, Inc.
3551 Seventh Street
Moline, Illinois 61265
| Re: | Registration
Statement on Form S-3 of QCR Holdings, Inc. |
Ladies and Gentlemen:
This
opinion is being rendered to you in connection with the filing by QCR Holdings, Inc., a Delaware corporation (the “Company”),
with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (the
“Registration Statement”), pursuant to the Securities Act of 1933, as amended (the “Act”). The
Registration Statement relates to the registration and proposed issuance and sale from time to time pursuant to Rule 415 under the
Securities Act of an unlimited amount of: (a) shares of common stock, $1.00 par value per share, of the Company (the “Common
Stock”); (b) shares of preferred stock, $1.00 par value per share, of the Company (the “Preferred Stock”);
(c) the Company’s debt securities, whether senior or subordinated (the “Debt Securities”); (d) warrants
to purchase Common Stock, Preferred Stock, Debt Securities, Depositary Shares or other securities of the Company or any combination of
the foregoing (the “Warrants”); (e) depositary shares representing a fractional interest in shares of
Preferred Stock (the “Depositary Shares”); (f) subscription rights for the purchase
of Common Stock, Preferred Stock, Debt Securities, Depositary Shares or other securities of the Company (the “Rights”);
(g) stock purchase contracts (the “Stock Purchase Contracts”); (h) stock purchase units (the “Stock
Purchase Units”); and (i) units comprised of one or more of the Common Stock, the Preferred Stock, Debt Securities or
Warrants in any combination, including guarantees of any securities (the “Units,” and together with the Common Stock,
the Preferred Stock, the Debt Securities, the Warrants, the Depositary Shares, the Rights, the Stock Purchase Contracts and the Stock
Purchase Units, the “Registered Securities”). The Registered Securities may be issued and sold from time to time by
the Company as set forth in the Registration Statement. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act.
We
have made such legal and factual investigations as we deemed necessary for purposes of this opinion. We have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (a) the Registration Statement;
(b) the Form of Indenture incorporated by reference to the Registration Statement; (c) the Company’s Certificate
of Incorporation, as amended and currently in effect; (d) the Company’s Bylaws, as amended and restated and currently in effect;
(e) the resolutions of the board of directors of the Company (the “Board”) dated August 16, 2023, with respect
to the filing of the Registration Statement; and (f) such other certificates and other instruments and documents as were deemed
necessary for purposes of the opinions hereafter expressed. In our investigation, we have assumed the genuineness of all signatures,
the proper execution of all documents submitted to us as originals, the conformity to the original documents of all documents submitted
to us as copies and the authenticity of the originals of such copies. As to matters of fact, we have relied upon representations of officers
of the Company.
200
West Madison Street, Suite 3900 | Chicago, Illinois 60606 | T. 312.984.3100 | F. 312.984.3150 | bfkn.com
QCR Holdings, Inc.
August 18,
2023
Page 2
The
opinions set forth herein are subject to the following assumptions, qualifications, limitations and exceptions being true and correct
at or before the time of the delivery of any Registered Securities offered pursuant to the Registration Statement: (A) the Board,
including any appropriate committee appointed thereby, and appropriate officers of the Company shall have (i) duly established the
terms of the Registered Securities (and in the case of the Warrants, the Rights, the Stock Purchase Contracts, the Stock Purchase Units
or Units, any such Registered Securities that are components thereof or issuable thereto), (ii) duly authorized and taken any other
necessary corporate or other action to approve the creation, if applicable, issuance and sale of the Registered Securities and related
matters, and (iii) duly reserved for issuance any Registered Securities consisting of Common Stock or Preferred Stock, and any Common
Stock or Preferred Stock for or into which any other Registered Securities are exercisable, exchangeable or convertible, and, in the
case of (i) through (iii), such authorizations and actions shall remain in effect and unchanged at all times during which the Registered
Securities are offered, sold or issued by the Company; (B) the definitive terms of each class and series, if applicable, of the
Registered Securities, and the terms of the issuance and sale of the Registered Securities (i) shall have been duly established
in accordance with all applicable law and the Company’s Certificate of Incorporation and Bylaws, any indenture, warrant agreement,
deposit agreement, rights agreement, unit agreement and any other relevant agreement relating to the terms and the offer and sale of
the Registered Securities (collectively, the “Documents”), and the authorizing resolutions of the Board, and (ii) shall
not violate any applicable law or any Documents (subject to the further assumption that such Documents have not been amended from the
date hereof in a manner that would affect the validity of any of the opinions rendered herein), or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with any restriction imposed by any court or governmental
body having jurisdiction over the Company; (C) any Document relating to the terms of the Registered Securities (but excluding any
Document relating to the terms of the Debt Securities or the Depositary Shares) shall be governed by and construed in accordance with
the internal laws of the State of Delaware; (D) any Document relating to the terms of the Debt Securities or the Depositary Shares
shall be governed by and construed in accordance with the internal laws of the State of New York; (E) upon issuance of any shares
of Common Stock or Preferred Stock, including as a component of Units or upon exercise, conversion or exchange of other Registered Securities,
(i) the total number of shares of Common Stock or Preferred Stock issued and outstanding shall not exceed the total number of shares
of Common Stock or Preferred Stock that the Company is then authorized to issue under its Certificate of Incorporation, and (ii) the
Company will receive consideration in an amount not less than the aggregate par value of such shares of Common Stock or Preferred Stock;
(F) the Registered Securities (including any Registered Securities underlying or issuable upon exercise, conversion or exchange
of other Registered Securities and, in the case of the Units, the Registered Securities that are components thereof), and any certificates
representing the relevant Registered Securities (including any Registered Securities issuable upon exercise, conversion or exchange of
other Registered Securities and, in the case of the Units, the Registered Securities that are components thereof), shall have been duly
authenticated, executed, countersigned, registered and delivered upon payment of the agreed-upon legal consideration therefor and shall
have been duly issued and sold in accordance with any relevant agreement, and, if applicable, duly executed and delivered by the Company
and any other appropriate party; (G) each applicable Document and any other relevant agreement relating to the offer and sale of
the Registered Securities shall have been duly authorized, executed and delivered by the Company and each other party thereto, and shall
constitute a valid and binding obligation of each party thereto (other than the Company); (H) the Registration Statement, and any
amendments thereto (including post-effective amendments), shall have been declared effective under the Act, and such effectiveness shall
not have been terminated or rescinded; (I) a prospectus supplement, if required, shall have been prepared, delivered and filed in
compliance with the Act and the applicable rules and regulations thereunder describing the Registered Securities offered thereby;
(J) the Registered Securities shall have been issued and sold in compliance with applicable U.S. federal and state securities laws
and solely in the manner stated in the Registration Statement and any applicable prospectus supplement; and (K) in the case of an
agreement or instrument pursuant to which any Registered Securities are to be issued, there shall be no terms or provisions contained
therein which would affect the validity of any of the opinions rendered herein.
QCR Holdings, Inc.
August 18,
2023
Page 3
Based
upon the foregoing, and subject to the qualifications, assumptions, limitations and exceptions set forth herein, it is our opinion that:
(1) the
Common Stock, when (a) duly issued and sold in accordance with the Registration Statement and applicable prospectus supplement and
either (i) in accordance with the provisions of an applicable, valid and binding purchase agreement, underwriting agreement or other
similar agreement or (ii) upon exercise of Rights or Warrants as contemplated by the Registration Statement and applicable prospectus
supplement and (b) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration
therefor as the Board (or a duly authorized committee thereof or a duly authorized officer of the Company) may determine, will be validly
issued, fully paid and nonassessable;
(2) the
Preferred Stock, when (a) duly issued and sold in accordance with the Registration Statement and applicable prospectus supplement
and either (i) in accordance with the provisions of an applicable, valid and binding purchase agreement, underwriting agreement
or other similar agreement or (ii) upon exercise of Rights or Warrants as contemplated by the Registration Statement and applicable
prospectus supplement and (b) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration
therefor as the Board (or a duly authorized committee thereof or a duly authorized officer of the Company) may determine, will be validly
issued, fully paid and nonassessable;
(3) the
Debt Securities, when (a) duly executed, authenticated, issued and sold in accordance with the Registration Statement and applicable
prospectus supplement and either (i) in accordance with the provisions of an applicable purchase agreement, underwriting agreement,
indenture or other similar agreement or (ii) upon exercise of Rights or Warrants as contemplated by the Registration Statement
and applicable prospectus supplement and (b) delivered to the purchaser or purchasers thereof against receipt by the Company of
such lawful consideration therefor, if any, as the Board (or a duly authorized committee thereof or a duly authorized officer of the
Company) may determine, will be binding obligations of the Company;
QCR Holdings, Inc.
August 18,
2023
Page 4
(4) the
Warrants, when (a) duly executed, authenticated, issued and sold in accordance with the Registration Statement and applicable prospectus
supplement and either (i) in accordance with the provisions of an applicable, valid and binding warrant agreement or other similar
agreement or (ii) upon exercise of Rights as contemplated by the Registration Statement and applicable prospectus supplement and
(b) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration therefor, if any,
as the Board (or a duly authorized committee thereof or a duly authorized officer of the Company) may determine, will be binding obligations
of the Company;
(5) the
Depositary Shares when (a) duly executed, authenticated, issued and sold in accordance with the Registration Statement and applicable
prospectus supplement and the provisions of an applicable, valid and binding deposit agreement or other similar agreement, (b) shares
of the Preferred Stock relating to any Depositary Shares have been deposited with the depositor therefor, (c) any depositary receipts
representing Depositary Shares have been duly executed, authenticated, issued and sold in the manner and for the consideration stated
in the applicable deposit agreement and (d) delivered to the purchaser or purchasers thereof against receipt by the Company of such
lawful consideration therefor, if any, as the Board (or a duly authorized committee thereof or a duly authorized officer of the Company)
may determine, will (i) be validly issued, and (ii) entitle their holders to the rights specified in the deposit agreement
and the depositary receipts;
(6) the
Rights, when (a) duly executed, authenticated, issued and sold in accordance with the Registration Statement and applicable prospectus
supplement and the provisions of an applicable, valid and binding rights agreement or other similar agreement and (b) delivered
to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration therefor, if any, as the Board (or
a duly authorized committee thereof or a duly authorized officer of the Company) may determine, will be binding obligations of the Company;
(7) the
Stock Purchase Contracts or Stock Purchase Units, when (a) duly executed, authenticated, issued and sold in accordance with the
Registration Statement and applicable prospectus supplement and the provisions of an applicable purchase agreement or other similar agreement,
(b) the actions described in paragraph 1 above have been taken if such Stock Purchase Contracts or Stock Purchase Units relate to
the issuance and sale of Common Stock, (c) the actions described in paragraph 2 above have been taken if such Stock Purchase Contracts
or Stock Purchase Units relate to the issuance and sale of Preferred Stock (d) the actions described in paragraph 3 above have been
taken if such Stock Purchase Units relate to the issuance and sale of Debt Securities, and (e) delivered to the purchaser or purchasers
thereof against receipt by the Company of such lawful consideration therefor, if any, as the Board (or a duly authorized committee thereof
or a duly authorized officer of the Company) may determine, will be binding obligations of the Company;
QCR Holdings, Inc.
August 18,
2023
Page 5
(8) the
Units, when (a) duly executed, authenticated, issued and sold in accordance with the Registration Statement and applicable prospectus
supplement and either (i) in accordance with the provisions of any applicable, valid and binding unit agreement or other similar
agreement or (ii) upon exercise of Rights as contemplated by the Registration Statement and applicable prospectus supplement and
(b) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration therefor as the
Board (or a duly authorized committee thereof or a duly authorized officer of the Company) may determine, will be binding obligations
of the Company, and any Common Stock or Preferred Stock that is a component of such Units will be validly issued, fully paid and nonassessable,
and any Debt Securities or Warrants that are components of such Units will be binding obligations of the Company.
Our
opinions set forth in the paragraphs above are subject to the following exceptions: (a) the effect of bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; and (b) the
effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability
of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion
of the court before which a proceeding is brought; and we express no opinion as to waivers of broadly or vaguely stated rights.
We
express no opinion concerning the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, and, with
respect to the opinions set forth in paragraphs (3) and (5) above, the laws of the State of New York. We express no opinion
as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States
of America or any state securities or blue sky laws.
We
express no opinion with respect to any specific legal issues other than those explicitly addressed herein. We assume no obligation to
update this opinion letter after the date that the Registration Statement becomes effective or otherwise advise you with respect to any
facts or circumstances or changes in law that may occur or come to our attention after such date (even though the change may affect the
legal conclusions stated in this opinion letter).
We
hereby consent to the reference to our firm in the Registration Statement under the caption “Legal Matters” and to the inclusion
of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
QCR Holdings, Inc.
August 18,
2023
Page 6
| |
Very truly yours, |
| |
|
| |
/s/ Barack Ferrazzano Kirschbaum & Nagelberg LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-3 and related Prospectus of QCR Holdings, Inc. of our reports dated March 1, 2023 relating to the consolidated
financial statements and the effectiveness of internal control over financial reporting of QCR Holdings, Inc., appearing in the Annual
Report on Form 10-K of QCR Holdings, Inc. for the year ended December 31, 2022.
We also consent to the reference to our firm under the heading “Experts”
in such Prospectus.
/s/ RSM US LLP
Davenport, Iowa
August 18, 2023
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨ Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address and telephone number of agent for
service)
QCR HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
| Delaware | |
42-1397595 |
| (State or other jurisdiction of incorporation or organization) | |
(I.R.S. Employer Identification No.) |
3551 Seventh Street
Moline, Illinois 61265
(Address of principal executive offices, including
zip code)
Debt Securities
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise
corporate trust powers.
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records of the
trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM
3 – 15. Not applicable.
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National
Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 5. | Not applicable. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939,
attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising
or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
| 8. | Not applicable. |
| 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 18th day of August, 2023.
| |
WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
|
| |
By: |
/s/ Michael H. Wass |
| |
Name: Michael H. Wass |
| |
Title: Vice President |
EXHIBIT 1
CHARTER OF WILMINGTON
TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to
perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The
title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association
shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted
at its main office and its branches.
THIRD. The board of directors of this
association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member
limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or
by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred
stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination
of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever
value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number
of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall
the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year
and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite
the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until
there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting
of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the
main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws,
or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election
is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day
within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders
representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose
of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance
exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors
to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the
manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may
not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each
common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors
may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote
for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be
delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the
notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance
herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast
for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by
delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders
at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the
director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided,
however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against
the director's removal.
FIFTH. The
authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars
($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United
States.
No holder of shares of the capital stock of any
class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association,
whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds
of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all
matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of
association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series
so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as
a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be
issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class
or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board
of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors
for the share dividend.
Unless otherwise provided in the bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares
pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional
shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon
surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association's
stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction,
or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder;
or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled
to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to
vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest.
The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights.
The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged
for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at
the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time,
may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified
as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting
rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification
of all or part of securities into securities of another class or series.
SIXTH. The
board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and
shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact
the business of this association.
A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent
with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association's management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein
shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall
raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs
of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall
have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval
of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits
and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits
of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change
the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders,
subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of
this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this
association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may
call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice
of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting
by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary,
the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth,
the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined
in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her
heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection
with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative
or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however,
that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board
of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given
under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon
(a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors
or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators)
is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of
the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board
of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize
independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether
the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the
rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the
basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on
the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may
be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors
or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement
of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of
any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter
be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the
board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a
majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification
is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding
or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association
may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock
of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association
for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 28, 2022)
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1.
Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may properly
come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington,
State of Delaware, at 1:00 o'clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board
of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting
shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to
each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made
on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent day within
60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing
two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2.
Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called
for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not less than fifty
percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage
prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing
on the books of the association a notice stating the purpose of the meeting.
The board of directors may fix a record date for determining shareholders
entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting.
The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for
the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders
or the board of directors to amend the articles of association or bylaws, whether or not such bylaws may be amended by the board of directors
in the absence of shareholder approval.
If an annual or special shareholders' meeting is adjourned to a
different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced
at the meeting before adjournment, unless any additional items of business are to be considered, or the association becomes aware of
an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is
adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to
persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the
election takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3.
Nominations of Directors. Nominations for election to the board of directors may be made by the board of directors or by any
stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations,
other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or
mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than
50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion,
be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
Section 4.
Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or
employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments
of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted
proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at
any time during a meeting shall be accepted.
Section 5.
Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but
less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority
of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law
or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for
the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
ARTICLE II
Directors
Section 1.
Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of the association.
Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2.
Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted
the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to
time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3.
Organization Meeting. The secretary or treasurer, upon receiving the certificate of the judges of the result of any election,
shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association,
or at such other place in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and
appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter
as practicable, and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors
present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4.
Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place, date and
hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall
be held, without notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at
the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls
upon a holiday, the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5.
Special Meetings. Special meetings of the board of directors may be called by the Chairman of the Board of the association,
or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail,
or in person stating the time and place of each special meeting.
Section 6.
Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except when otherwise
provided by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. If the number of directors present at the meeting is reduced below the number that would
constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with
Article II, Section 7. If a quorum is present, the board of directors may take action through the vote of a majority of
the directors who are in attendance.
Section 7.
Meetings by Conference Telephone. Any one or more members of the board of directors or any committee thereof may participate
in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such
meeting.
Section 8.
Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined
by the person presiding at the meeting.
Section 9.
Removal of Directors. Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred
to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice
of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled
to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action,
by vote of a majority of the entire Board of Directors.
Section 10.
Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according
to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at
a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than
a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders
at a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each
shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies
being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur
at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director
may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for
the management, supervision, and administration of the association. The board of directors may delegate its power, but none of its responsibilities,
to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized
by committees of the board of directors before such policies become effective. Each committee must have one or more member(s), and who
may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board
of directors. Provisions of the articles of association and these bylaws governing place of meetings, notice of meeting, quorum and voting
requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of
members to it must be approved by the board of directors.
Section 1.
Loan Committee. There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors
annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences
of debt, to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts,
and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated.
The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of
directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes
of the board of directors.
Section 2.
Investment Committee. There shall be an investment committee composed of not less than 2 directors, appointed by the board
of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the
investment policy, to recommend amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to
exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that
may be lawfully delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next
regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3.
Examining Committee. There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers,
appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar
year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors
responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next
regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls
and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs
of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph of this section
3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee
of the association's parent corporation by a resolution duly adopted by the board of directors.
Section 4.
Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5.
Other Committees. The board of directors may appoint, from time to time, from its own members, compensation, special litigation
and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (4) | Amend articles of association; |
| (5) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences
and limitations of a class or series of shares. |
Section 6.
Committee Members' Fees. Committee members may receive a fee for their services as committee members and traveling and other
out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid
for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not
attended. The amount of the fee and the basis on which it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1.
Officers. The board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following
the annual meeting of the shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and
one or more Vice Presidents however denominated, a Corporate Secretary, a Treasurer, a Chief Auditor, and such other officers as it
may determine. At the Annual Reorganization Meeting, the board of directors shall also elect or reelect all of the officers of the
association to hold office until the next Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the
officers of the association may be elected as follows and shall hold office until the next Annual Reorganization meeting unless
otherwise determined by the board of directors or such authorized officer(s): The head of the Human Resources Department of M&T
Bank or his or her designee or designees, may appoint officers up to and including the rank of Senior Executive Vice President,
including (without limitation as to title or number) one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors, and any other officer positions as
they deem necessary and appropriate, except for any “SEC-Reporting Officers” of M&T Bank Corporation for purposes of
Section 16 of the Securities Exchange Act of 1934, as such officers may only be appointed by the Board of Directors.
Section 2.
Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to serve
at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the
carrying out of the policies adopted or approved by the board of directors; shall have general executive powers, as well as the specific
powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred
upon or assigned by the board of directors.
Section 3.
President. The board of directors shall appoint one of its members to be the president of the association. In the absence of
the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers
and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president,
or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be
conferred or assigned by the board of directors.
Section 4.
Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such powers
and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence
of the president, to perform all the duties of the president.
Section 5.
Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary
of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the
giving of all notices required by these bylaws; shall be custodian of the corporate seal, records, documents and papers of the association;
shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other
powers and duties pertaining by law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall also perform
such other duties as may be assigned from time to time, by the board of directors.
Section 6.
Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or
more officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches
and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or desirable to
transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to
their several offices, or as may be conferred upon or assigned to them by the board of directors, the chairperson of the board, or the
president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7.
Tenure of Office. The president and all other officers shall hold office for the current year for which the board of directors
was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall
be filled promptly by the board of directors.
Section 8.
Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the
notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1.
Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board
of directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities
or cause suitable audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers
have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles.
Such committee: (1) must not include any officers of the bank or an affiliate who participate significantly in the administration
of the bank’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee
to which the board of directors has delegated power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section
1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit
committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2.
Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 3.
Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary
relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest
in the association investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under applicable law.
ARTICLE VI
Stock and Stock Certificates
Section 1.
Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which
all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's
shares, succeed to all rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder
meetings and related matters and to protect it against fraudulent transfers.
Section 2.
Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed)
and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other
officer appointed by the board of directors for that purpose, to be known as an authorized officer, and the seal of the association shall
be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books
of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost,
stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial
owner of shares that are registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may
set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1.
Seal. The seal of the association shall be in such form as may be determined from time to time by the board of directors. The
president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the
board of directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal
on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1.
Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2.
Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations,
receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by
any officer elected or appointed pursuant to Article IV of these bylaws. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors
may from time to time direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3.
Records. The articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors,
and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes
of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4.
Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and
sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994,
and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5.
Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party”
shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or
administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened,
pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative,
in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative
proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is
assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with
respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next
succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses,
including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with
an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators)
only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his
or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by
the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of
directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the
institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits,
(b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial
capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and
fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an
undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such
advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty,
(ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is
required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the
association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or
administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of
association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of
an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or
administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors or
administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum
is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the
stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct
provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors
are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board
may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have
been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may
rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are
named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent
legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of
indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment
of these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law
in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be
enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs,
executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided
in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated
party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s
articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing
such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing,
the rights of indemnification and to the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights,
pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any
such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and
expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board
of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in
these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against
such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1.
Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place
at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2.
Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of directors,
by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany
any such change.
I, ,
certify that: (1) I am the duly constituted (secretary or treasurer) of and
secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the
bylaws of the association, and all of them are now lawfully in force and effect.
I
have hereunto affixed my official signature on this day of .
The association's shareholders may amend or repeal the bylaws even
though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| | |
WILMINGTON TRUST, NATIONAL ASSOCIATION |
| | |
|
| Dated: August 18, 2023 | |
By: |
/s/ Michael H. Wass |
| | |
|
Name: Michael H. Wass |
| | |
|
Title: Vice President |
EXHIBIT 7
R E P O R T O F C O N D I T I O N
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on June 30, 2023
| | |
Thousands of Dollars | |
| ASSETS | |
| |
| Cash and balances due from depository institutions: | |
| 669,843 | |
| Securities: | |
| 5,524 | |
| Federal funds sold and securities purchased under agreement to resell: | |
| 0 | |
| Loans and leases held for sale: | |
| 0 | |
| Loans and leases net of unearned income, allowance: | |
| 50,512 | |
| Premises and fixed asset | |
| 30,423 | |
| Other real estate owned: | |
| 55 | |
| Investments in unconsolidated subsidiaries and associated companies: | |
| 0 | |
| Direct and indirect investments in real estate ventures: | |
| 0 | |
| Intangible assets: | |
| 0 | |
| Other assets: | |
| 70,512 | |
| Total Assets: | |
| 826,814 | |
| | |
| | |
| | |
| Thousands of Dollars | |
| LIABILITIES | |
| | |
| Deposits | |
| 8,937 | |
| Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
| Other borrowed money: | |
| 0 | |
| Other Liabilities: | |
| 7,870 | |
| Total Liabilities | |
| 87,807 | |
| | |
| | |
| | |
| Thousands of Dollars | |
| EQUITY CAPITAL | |
| | |
| Common Stock | |
| 1,000 | |
| Surplus | |
| 342,783 | |
| Retained Earnings | |
| 395,647 | |
| Accumulated other comprehensive income | |
| (423 | ) |
| Total Equity Capital | |
| 739,007 | |
| | |
| | |
| Total Liabilities and Equity Capital | |
| 826,814 | |
Exhibit 107.1
Calculation
of Filing Fee Table
S-3
(Form Type)
QCR Holdings, Inc.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly
Registered Securities and Carry Forward Securities
| |
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered
(a) |
Proposed
Maximum
Offering
Price Per
Unit (a) |
Maximum
Aggregate
Offering Price (a) |
Fee
Rate
(b) |
Amount
of
Registration
Fee (b) |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing
Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Primary
Offering |
| Fees
to Be Paid |
Equity |
Common
Stock, par value $1.00 per share (c) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Equity |
Preferred
Stock, par value $1.00 per share (c) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Debt |
Debt
securities (d) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Equity |
Warrants
(e) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Equity |
Depositary
Shares (f) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Other |
Subscription
Rights (g) |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Other |
Stock
Purchase Contracts |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Other |
Stock
Purchase Units |
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
to Be Paid |
Other |
Units
|
456(b) and
457(r) |
|
|
|
|
|
__ |
__ |
__ |
__ |
| Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
| Carry
Forward Securities |
| Carry
Forward Securities |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
| |
Total
Offering Amount |
N/A |
|
N/A |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
N/A |
|
|
|
|
| |
Total
Fee Offsets |
|
|
N/A |
|
|
|
|
| |
Net
Fee Due |
|
|
N/A
|
|
|
|
|
| (a) | An indeterminate amount of securities
as may from time to time to be issued at indeterminate prices is being registered pursuant
to this registration statement.. |
| (b) | In accordance with Rules 456(b) and
457(r), the registrant is deferring payment of all of the registration fee. |
| (c) | Shares of common stock or preferred
stock may be issued in primary offerings, upon conversion of debt securities or preferred
stock registered hereby or upon the exercise of warrants or subscription rights to purchase
preferred stock or common stock. |
| (d) | The debt securities being registered
hereunder will consist of one or more series of senior debt securities or subordinated debt
securities, or any combination thereof, as more fully described herein. |
| (e) | Warrants exercisable for common stock,
preferred stock, debt securities or other securities. |
| (f) | The depositary shares registered hereunder
will be evidenced by depositary receipts issued pursuant to a deposit agreement. If the registrant
elects to offer to the public fractional interests in shares of preferred stock, then depositary
receipts will be distributed to those persons purchasing the fractional interests and the
shares will be issued to the depositary under the deposit agreement. |
| (g) | Subscription rights evidencing the
right to purchase common stock or other securities. |
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