As filed with the Securities and Exchange Commission
on August 22, 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
THE FIRST BANCSHARES, INC.
(Exact name of registrant as specified in its
charter)
| Mississippi |
64-0862173 |
(State
or other jurisdiction of
incorporation or organization) |
(I.R.S.
Employer
Identification No.) |
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
(601) 268-8998
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Donna T. (Dee Dee) Lowery
Executive Vice President and Chief Financial
Officer
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
(601) 268-8998
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
The Commission is requested to send copies of
all communications to:
Mark C. Kanaly, Esq.
David S. Park, Esq.
Alston & Bird LLP
1201 W. Peachtree Street
Atlanta, Georgia 30309-3424
Telephone: (404) 881-7975
Facsimile: (404) 253-8390
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. x
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 definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
x |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
| |
|
Emerging growth company |
¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Exchange Act. ¨
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and
may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state
or jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST
22, 2023
PROSPECTUS
The First Bancshares, Inc.
$300,000,000
Common Stock
Preferred Stock
Senior Debt Securities
Subordinated Debt Securities
Depositary Shares
Purchase Contracts
Units
Warrants
Rights
The First Bancshares, Inc.
may offer the securities listed above in one or more offerings in amounts, at prices, and on terms determined at the time of the offering.
We may sell our securities through agents we select or through underwriters and dealers we select. If we use agents, underwriters or
dealers, we will name them and describe their compensation in a prospectus or prospectus supplement.
This
prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific terms
of the securities offered in a supplement to this prospectus. The prospectus or prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you
invest in any securities. This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable prospectus
supplement.
Our common stock is listed on the Nasdaq Global
Market and trades on the exchange under the symbol “FBMS.” Each prospectus supplement will indicate if the securities offered
thereby will be listed on any securities exchange. This prospectus may not be used to sell securities unless accompanied by a prospectus
supplement or a free writing prospectus.
We may offer securities through underwriting syndicates
managed or co-managed by one or more underwriters, or directly to purchasers. The prospectus supplement for each offering of securities
will describe in detail the plan of distribution for that offering. For general information about the distribution of securities offered,
please see “Plan of Distribution” in this prospectus.
Investing in our securities involves risks.
You should carefully read and consider the information referred to under the heading “Risk Factors” beginning on page 6
of this prospectus and set forth in the documents incorporated by reference herein before making any decision to invest in our securities.
None
of the Securities and Exchange Commission (the “SEC”), the Federal Deposit Insurance Corporation (the “FDIC”),
the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”) or any state securities commission or
any other federal regulatory agency has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
Any
securities offered by this prospectus and any accompanying prospectus supplement will be equity securities or unsecured obligations and
will not be savings accounts, deposits or other obligations of any banking or non-banking subsidiary of ours and are not insured or guaranteed
by the FDIC, the bank insurance fund or any other governmental agency or instrumentality.
This date of this prospectus is , 2023.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement
that we filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process. Under
this shelf registration process, we may sell, from time to time, any combination of the securities described in this prospectus in one
or more offerings. This prospectus only provides you with a general description of the securities we may offer. Each time we sell securities,
we will provide a supplement to this prospectus that contains specific information about the terms of the securities and the offering.
A prospectus supplement may include a discussion of any risk factors or other special considerations applicable to those securities or
to us. The supplement also may add, update or change information contained in this prospectus. If there is any inconsistency between
the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement.
You should carefully read both this prospectus and any supplement, together with the additional information described under the heading
“Where You Can Find More Information” below.
The registration statement containing this prospectus,
including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus.
The registration statement, including the exhibits and the documents incorporated herein by reference, can be read at the SEC’s
Internet site at www.sec.gov or at the SEC office mentioned under the heading “Where You Can Find More Information” below.
We may sell securities to underwriters who will
sell the securities to the public on terms fixed at the time of sale. In addition, the securities may be sold by us directly or through
dealers or agents designated from time to time. If we, directly or through agents, solicit offers to purchase the securities, we reserve
the sole right to accept and, together with any agents, to reject, in whole or in part, any of those offers.
Any prospectus supplement will contain the names
of the underwriters, dealers or agents, if any, together with the terms of the offering, the compensation of those underwriters and the
net proceeds to us. Any underwriters, dealers or agents participating in the offering may be deemed “underwriters” within
the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
Unless otherwise indicated or unless the context
requires otherwise, all references in this report to “the Company”, “we”, “us”, “our”,
or similar references, mean The First Bancshares, Inc. and our subsidiaries, including our banking subsidiary, The First Bank, on
a consolidated basis. References to “The First” or the “Bank” mean our wholly owned banking subsidiary, The First
Bank.
Unless otherwise indicated, currency amounts in
this prospectus and in any applicable prospectus supplement are stated in U.S. dollars.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy any document that we file with the SEC at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at (800) SEC-0330 for further information about
the Public Reference Room. Our filings with the SEC are also available to the public through the SEC’s Internet site at www.sec.gov.
In addition, since some of our securities are listed on the Nasdaq Global Market, you can read our SEC filings at the Nasdaq Stock Market, Inc.,
Reports Section, 1735 K Street N.W., Washington, D.C. 20006. We also maintain an Internet site at www.thefirstbank.com at which
there is additional information about our business, however the contents of that site are not incorporated by reference into, and are
not otherwise a part of, this prospectus.
Incorporation
of Certain INFORMATION by Reference
The SEC’s rules allow us to incorporate
by reference information into this prospectus. This means that we can disclose important information to you by referring you to another
document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports
filed by us with the SEC after the date of this prospectus will automatically update and, where applicable, supersede any information
contained in this prospectus or incorporated by reference in this prospectus. We incorporate by reference the following documents (other
than information “furnished” and not “filed”):
| · | Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, filed with
the SEC on May 10, 2023, and June 30, 2023, filed with the SEC on August 9, 2023; |
| · | Our
Current Reports on Form 8-K filed with the SEC on January 3, 2023, January 26, 2023, March 1, 2023, April 27, 2023, May 26, 2023 and July 26, 2023 (except
for information furnished to the SEC that is not deemed to be “filed” for purposes
of the Exchange Act); |
| · | Any
documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of the initial filing of this registration statement of which
this prospectus is a part and prior to the effectiveness of such registration statement (except
for information furnished to the SEC that is not deemed to be “filed” for purposes
of the Exchange Act); and |
| · | Any
documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act on or after the date of this prospectus and before the termination of the offering
of the securities offered hereby (except for information furnished to the SEC that is not
deemed to be “filed” for purposes of the Exchange Act). |
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon his or her written
or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus,
excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. You may request
a copy of these filings, at no cost, by writing or telephoning us at:
The First Bancshares, Inc.
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
(601)
268-8998
Attention: Investor Relations
You should rely only on the information contained
or incorporated by reference in this prospectus and the applicable prospectus supplement. We have not authorized anyone else to provide
you with additional or different information. We may only use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in jurisdictions where the offer is permitted. You should not assume that the information
in this prospectus or the applicable prospectus supplement or any document incorporated by reference is accurate as of any date other
than the dates of the applicable documents.
SPECIAL CAUTIONARY NOTICE
REGARDING FORWARD-LOOKING STATEMENTS
Certain statements made
or incorporated by reference in this prospectus which are not statements of historical fact constitute forward-looking statements within
the meaning of, and subject to the protections of, Section 27A of the Securities Act of 1933, as amended, and Section 21E of
the Securities Exchange Act of 1934, as amended. Forward-looking statements include statements
with respect to the Company’s beliefs, plans, objectives, goals, targets, expectations, anticipations, assumptions, estimates,
intentions and future performance and involve known and unknown risks, many of which are beyond the Company’s control and which
may cause the Company’s actual results, performance or achievements or the financial services industry or economy generally, to
be materially different from future results, performance or achievements expressed or implied by such forward-looking statements.
All
statements other than statements of historical fact are forward-looking statements. You can identify these forward-looking statements
through the Company’s use of words such as “believes,” “anticipates,” “expects,” “may,”
“will,” “assumes,” “predicts,” “could,” “should,” “would,” “intends,”
“targets,” “estimates,” “projects,” “seek,” “plans,” “potential,”
“aim,” and other similar words and expressions of the future or otherwise regarding the outlook for the Company’s future
business and financial performance and/or the performance of the financial services industry and economy in general. Forward-looking
statements are based on the current beliefs and expectations of the Company’s management and are subject to significant risks and
uncertainties. Actual results may differ materially from those contemplated by such forward-looking statements. A number of factors could
cause actual results to differ materially from those contemplated by the forward-looking statements in this registration statement. Many
of these factors are beyond the Company’s ability to control or predict. Other factors that could cause actual results to differ
materially from those indicated by forward-looking statements include, but are not limited to, the following:
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· |
negative impacts on our business, profitability and
our stock price that could result from prolonged periods of inflation; |
| |
· |
risks and uncertainties relating to recent, pending
or potential future mergers or acquisitions, including risks related to the completion of such acquisitions within expected timeframes
and the successful integration of the business that we acquire into our operations; |
| |
· |
the risk that a future economic downturn and contraction,
including a recession, could have a material adverse effect on our capital, financial condition, credit quality, results of operations
and future growth, including the risk that the strength of the current economic environment could be weakened by the continued impact
of rising interest rates, supply chain challenges and inflation; |
| |
· |
disruptions to the financial markets as a result of
the current or anticipated impact of military conflict, including Russia’s military action in Ukraine, terrorism or other geopolitical
events; |
| |
· |
governmental monetary and fiscal policies, including
interest rate policies of the Board of Governors of the Federal Reserve; |
| |
· |
the costs and effects of litigation,
investigations, inquiries or similar matters, or adverse facts and developments related thereto; |
| |
· |
reduced earnings due to higher credit losses generally
and specifically because losses in the sectors of our loan portfolio secured by real estate are greater than expected due to economic
factors, including declining real estate values, increasing interest rates, increasing unemployment, or changes in payment behavior
or other factors occurring in those areas; |
| |
· |
general economic conditions,
either nationally or regionally and especially in our primary service area, becoming less favorable than expected resulting in, among
other things, a deterioration in credit quality; |
| |
· |
adverse changes in asset quality
and resulting credit risk-related losses and expenses; |
| |
· |
ability of borrowers to repay
loans, which can be adversely affected by a number of factors, including changes in economic conditions, adverse trends or events
affecting business industry groups, reductions in real estate values or markets, business closings or lay-offs, natural disasters,
public health emergencies and international instability; |
| |
· |
developments in our mortgage
banking business, including loan modifications, general demand, and the effects of judicial or regulatory requirements or guidance; |
| |
· |
changes in laws and regulations
affecting our businesses, including governmental monetary and fiscal policies, legislation and regulations relating to bank products
and services, as well as changes in the enforcement and interpretation of such laws and regulations by applicable governmental and
self-regulatory agencies, which could require us to change certain business practices, increase compliance risk, reduce our revenue,
impose additional costs on us, or otherwise negatively affect our businesses; |
| |
· |
the
financial impact of future tax legislation; |
| |
· |
changes
in political conditions or the legislative or regulatory environment, including the possibility that the U.S. could default on its
debt obligations; |
| |
· |
the
adequacy of the level of our allowance for credit losses and the amount of credit loss provisions required to replenish the allowance
in future periods; |
| |
· |
reduced
earnings due to higher credit losses because our loans are concentrated by loan type, industry segment, borrower type, or location
of the borrower or collateral; |
| |
· |
changes
in the interest rate environment which could reduce anticipated or actual margins; |
| |
· |
increased
funding costs due to market illiquidity, increased competition for funding, higher interest rates, and increased regulatory requirements
with regard to funding; |
| |
· |
results
of examinations by our regulatory authorities, including the possibility that the regulatory authorities may, among other things,
require us to increase our allowance for credit losses through additional credit loss provisions or write-down of our assets; |
| |
· |
the
rate of delinquencies and amount of loans charged-off; |
| |
· |
the
impact of our efforts to raise capital on our financial position, liquidity, capital, and profitability; |
| |
· |
significant
increases in competition in the banking and financial services industries; |
| |
· |
changes
in the securities markets; |
| |
· |
significant
turbulence or a disruption in the capital or financial markets and the effect of a fall in stock market prices on our investment
securities; |
| |
· |
loss
of consumer confidence and economic disruptions resulting from national disasters or terrorist activities; |
| |
· |
our
ability to retain our existing customers, including our deposit relationships; |
| |
· |
changes
occurring in business conditions and inflation; |
| |
· |
changes
in technology or risks to cybersecurity; |
| |
· |
changes
in deposit flows; |
| |
· |
changes
in accounting principles, policies, or guidelines, including the impact of the Current Expected Credit Losses standard; |
| |
· |
our
ability to maintain adequate internal control over financial reporting; and |
| |
· |
other risks and uncertainties
detailed from time to time in our filings with the SEC. |
For
a discussion of these and other risks that may cause actual results to differ from expectations, refer to “Part I – Item
1A. Risk Factors” and other information contained in our Annual Report on Form 10-K for the fiscal year ended December 31,
2022 and our other periodic filings, including quarterly reports on Form 10-Q and current reports on Form 8-K, that we file
from time to time with the SEC. All written or oral forward-looking statements that are made by or are attributable to the Company are
expressly qualified by this cautionary notice. You should not place undue reliance on any forward-looking statements since those statements
speak only as of the date on which the statements are made. The Company undertakes no obligation to update any forward-looking statement
to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of new information or unanticipated
events, except as may otherwise be required by law.
THE FIRST BANCSHARES, INC.
The following is a brief summary of our business.
It does not contain all of the information that may be important to you. Before you decide to purchase any of our securities, you should
read carefully this entire prospectus and the accompanying prospectus supplement, along with any other information we refer to in, or
incorporate by reference into, this prospectus and accompanying prospectus supplement.
The Company was incorporated on June 23,
1995 to serve as a bank holding company for The First, formerly known as The First, A National
Banking Association, headquartered in Hattiesburg, Mississippi. The Company is a Mississippi corporation and is a registered bank
holding company. The First began operations on August 5, 1996 from our main office in the Oak Grove community, which is now incorporated
within the city of Hattiesburg. The First currently operates 116 locations (110 branches, 1 motorbank and 5 loan production offices)
in Mississippi, Alabama, Florida, Georgia and Louisiana.
The Company is a community-focused
financial institution that offers a full range of financial services to individuals, businesses, municipal entities, and nonprofit organizations
in the communities that it serves. These services include consumer and commercial loans, deposit accounts and safe deposit services.
We
have benefited from historically strong asset quality metrics compared to most of our peers, which we believe illustrates our historically
disciplined underwriting and credit culture. As such, we benefited from our strength by taking advantage of growth opportunities when
many of our peers were unable to do so. We have also focused on growing earnings per share and increasing our tangible common equity
and tangible book value per share.
In recent years, we have
developed and executed a regional expansion strategy to take advantage of growth opportunities through several acquisitions, which has
allowed us to expand our footprint to Alabama, Florida Louisiana and Georgia. We believe the conversion and integration of these acquisitions
have been successful to date, and we are optimistic that these markets will continue to contribute to our future growth and success.
In addition, we continue to experience organic loan growth by continuing to strengthen our relationships with existing clients and creating
new relationships.
On
January 15, 2022, The First, then named The First, A National Banking Association, converted from a national banking association
to a Mississippi state-chartered bank and changed its name to The First Bank. The First Bank is now a member of the Federal Reserve System
through the Federal Reserve Bank of Atlanta.
The Company had, on a consolidated basis, total
assets of $7.9 billion, total loans of $5.0 billion, total deposits of $6.5 billion and stockholders’ equity of
$899.4 million at June 30, 2023.
Our
principal executive offices are located at 6480 U.S. Highway 98 West, Hattiesburg, Mississippi 39402, and our telephone number is (601)
268-8998. Our website is located at www.thefirstbank.com. We are not incorporating any information from our website into
this prospectus, and none of the information on our website is included or made a part of this prospectus.
RISK FACTORS
Investing
in our securities involves risks. You should carefully consider the risks described under “Risk Factors” in our most recent
Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q which descriptions are incorporated by reference
herein, as well as the other information contained or incorporated by reference in this prospectus or in any prospectus supplement hereto
before making a decision to invest in our securities. Additional risks and uncertainties not presently known to us or that
we currently deem immaterial may also affect our business operations and financial condition.
USE OF PROCEEDS
We intend to use the
net proceeds from the sales of the securities as set forth in the applicable prospectus supplement.
DESCRIPTION OF SECURITIES WE MAY OFFER
This prospectus contains summary descriptions
of our common stock, preferred stock, senior and subordinated debt securities, depositary shares, purchase contracts, units, warrants
and rights that we may offer from time to time. These summary descriptions are not meant to be complete descriptions of such securities.
The particular terms of any security will be described in the related prospectus supplement and other offering material.
DESCRIPTION OF CAPITAL STOCK
The material terms and
provisions of the Company’s capital stock are summarized as set forth below. The following summary is not intended to be relied
upon as an exhaustive list or a detailed description of the provisions discussed and is qualified in its entirety by the Mississippi
Business Corporation Act (“MBCA”) and by the Amended and Restated Articles of Incorporation of the Company, as amended (“Articles”),
and the Amended and Restated Bylaws of the Company, as amended (“Bylaws”). Copies of our Articles of Incorporation and Bylaws
are incorporated by reference in this prospectus. See “Where You Can Find More Information” and “Incorporation Of Certain
Information By Reference.”
Common Stock
Authorized. The
Company has 40,000,000 shares of authorized common stock, $1.00 par value. As of August 21, 2023, there were 32,347,007 and 31,097,400
shares of common stock issued and outstanding, respectively.
Voting
Rights; Cumulative Voting. Pursuant to the MBCA and the Company’s Bylaws, each outstanding share of the Company’s
common stock is entitled to one vote on each matter submitted to a vote. Holders of the Company’s common stock do not have cumulative
voting rights. Article 2.6 of the Company’s Bylaws provides that unless otherwise required by the MBCA or the Articles, all
classes or series of the Company shares entitled to vote generally on a matter shall for that purpose be considered a single voting group.
Classified
Board of Directors. Under Article 10 of the Company’s Articles, the board of directors of the Company is divided
into three classes — Class I, Class II, and Class III as nearly equal in numbers of directors as possible. Article 3.2
of the Bylaws establishes a minimum of nine directors, and a maximum of 25 directors. At present there are a total of twelve directors
divided as follows: four Class I directors, four Class II directors, and four Class III directors. The terms of the Class I
directors will expire at the 2026 Annual Shareholders’ Meeting. The terms of the Class II directors will expire at the 2024
Annual Shareholders’ Meeting. The terms of the Class III directors will expire at the 2025 Annual Shareholders’ Meeting.
Dividends.
The Company is a legal entity separate and distinct from The First. There are various restrictions that limit the ability of The First
to finance, pay dividends or otherwise supply funds to the Company or other affiliates. In addition, subsidiary banks of holding companies
are subject to certain restrictions under Sections 23A and 23B of the Federal Reserve Act on any extension of credit to the bank holding
company or any of its subsidiaries, on investments in the stock or other securities thereof and on the taking of such stock or securities
as collateral for loans to any borrower. Further, a bank holding company and its subsidiaries are prohibited from engaging in certain
tie-in arrangements in connection with extensions of credit, leases or sales of property, or furnishing of services.
The principal source
of funds from which the Company pays cash dividends are the dividends received from its bank subsidiary, The First. Consequently, dividends
are dependent upon The First’s earnings, capital needs, and regulatory policies, as well as statutory and regulatory limitations.
Federal
and state banking laws and regulations restrict the amount of dividends and loans a bank may make to its parent company. The Company
and The First are subject to various general regulatory policies and requirements relating to the payment of dividends, including requirements
to maintain adequate capital above regulatory minimums. The appropriate federal bank regulatory authority may prohibit the payment of
dividends where it has determined that the payment of dividends would be an unsafe or unsound practice. The Federal Reserve has indicated
that paying dividends that deplete a bank’s capital base to an inadequate level would be an unsound and unsafe banking practice.
The Federal Reserve has indicated that depository institutions and their holding companies should generally pay dividends only out of
current operating earnings. Further, under Mississippi law, The First must obtain the
non-objection of the Commissioner of the Mississippi Department of Banking and Consumer Finance prior to paying any dividend to the Company.
Preemptive
Rights; Liquidation. The Company’s common stock does not carry any preemptive rights enabling a holder to subscribe
for or receive shares of the Company’s common stock. In the event of liquidation, holders of the Company’s common stock are
entitled to share in the distribution of assets remaining after payment of debts and expenses and after required payments to holders
of the Company’s preferred stock, if any such shares are outstanding. There are no redemption or sinking fund provisions applicable
to the Company’s common stock.
Preferred Stock
Under the terms of our
Articles, the Company has authorized the issuance of up to 10,000,000 shares of preferred stock, par value $1.00 per share, any part
or all of which shares may be established and designated from time to time by the Company’s board of directors by filing an amendment
to the Articles, which is effective without shareholder action, in accordance with the appropriate provisions of the MBCA. If we offer
preferred stock, we will file the terms of the preferred stock with the SEC, and the prospectus supplement relating to that offering
will include a description of the specific terms of the offerings. The Articles authorize the Company’s board of directors to establish
one or more series of preferred stock, and to establish such preferences, limitations and relative rights as may be applicable to each
series of preferred stock. The issuance of preferred stock and the determination of the terms of preferred stock by the board, 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 the Company’s common stock.
In addition, as described
under “Description of Depositary Shares,” we may, instead of offering full shares of any series of preferred stock, offer
depositary shares evidenced by depositary receipts, each representing a fraction of a share of the particular series of preferred stock
issued and deposited with a depositary. The fraction of a share of preferred stock which each depositary share represents will be set
forth in the prospectus supplement relating to such depositary shares.
Transfer Agent and Registrar
The transfer agent and
registrar for our common stock is Computershare, Inc.
Anti-Takeover Provisions
Supermajority
Voting Requirements; Business Combinations or Control Share Acquisition. The MBCA states that in the absence of a greater
requirement in the articles of incorporation, a sale, lease, exchange, or other disposition of all, or substantially all, of a corporation’s
property requires approval by a majority of the shares entitled to vote on the transaction. The Company’s Articles do not provide
for a greater than majority vote on such a transaction.
The Company’s Articles
include a “control share acquisition” provision requiring any person who plans to acquire a control block of stock (generally
defined as more than 10% of all voting power) to obtain approval by the majority vote of disinterested shareholders or the affirmative
vote of 75% of eligible members of the board of directors (excluding any director who is proposing or who is a member of a group proposing
a control share acquisition) in order to vote the control shares. If a control share acquisition is made without first obtaining this
approval, all stock beneficially owned by the acquiring person in excess of 10% will be considered “excess stock” and will
not be entitled to vote.
Any person who proposes
to make or has made a control share acquisition may deliver a statement to the Company describing the person’s background and the
control share acquisition and requesting a special meeting of shareholders of the Company to decide whether to grant voting rights to
the shares acquired in the control share acquisition. The acquiring person must pay the expenses of this meeting. If no request is made,
the voting rights to be accorded the shares acquired in the control share acquisition shall be presented to the next special or annual
meeting of the shareholders. If the acquiring person does not deliver his or her statement to the Company, it may elect to repurchase
the acquiring person’s shares at fair market value. Control shares acquired in a control share acquisition are not subject to redemption
after an acquiring person’s statement has been filed unless the shares are not accorded full voting rights by the shareholders.
Removal
of Directors. Article 11 of the Company’s Articles provides that no director of the Company may be removed
except by the shareholders for cause; provided that directors elected by a particular voting group may be removed only by the shareholders
in that voting group for cause. Article 3.3 of the Company’s Bylaws provide further that removal action may only be taken
at a shareholders’ meeting for which notice of the removal action has been given. A removed director’s successor may be elected
at the same meeting to serve the unexpired term.
Vacancies
in the Board of Directors. Under the Company’s Bylaws, any vacancy may be filled for the unexpired term by the
affirmative vote of a majority of the remaining directors, provided that, if the vacant office was held by a director elected by a particular
voting group, only the shares of that voting group or the remaining directors elected by that voting group shall be entitled to fill
the vacancy; provided further, that if the vacant office was held by a director elected by a particular voting group, the other remaining
directors or director (elected by another voting group or groups) may fill the vacancy during an interim period before the shareholders
of the vacated director’s voting group act to fill the vacancy.
Amendment
of the Articles of Incorporation or Bylaws. Under the MBCA, the board of directors has the power to amend or repeal the
bylaws of a Mississippi corporation such as the Company, unless such power is expressly reserved for the shareholders. Article 10
of the Company’s Bylaws provides that the Bylaws may be amended, altered, or repealed by the board of directors, except with regard
to the provisions establishing the number of directors and process for removal of directors, which may only be amended by the affirmative
vote of holders of outstanding shares entitled to more than 80% of the votes eligible to be cast on the alteration, amendment, or repeal.
Under the MBCA, amendments
to the Articles that result in dissenters’ rights require the affirmative vote of a majority of the outstanding shares entitled
to vote on the amendment. Otherwise, the Articles may be amended by a majority vote of the shares present at a meeting where a quorum
is present.
Special
Meetings of Shareholders. Under the Company’s Bylaws, special meetings of the shareholders, for any purpose or
purposes, may be called by the Chairman of the Board, the Chief Executive Officer, or the board of directors, or within 75 days of a
written request of shareholders holding in the aggregate 10% or more of the total voting power entitled to vote on an issue. Such a request
must state the purpose or purposes of the proposed special meeting.
Shareholder
Proposals and Nominations. The Company’s Bylaws provide procedures that must be followed to properly nominate candidates
for election as directors. Director nominations, other than those made by or at the direction of the board of directors, may be made
by any shareholder by delivering written notice to the corporate secretary not less than 50 nor more than 90 days prior to the meeting
at which directors are to be elected, provided that the Company has mailed the first notice of the meeting at least 60 days prior to
the meeting date. If the Company has not given such notice, shareholder nominations must be submitted within ten days following the earlier
of (i) the date that notice of the date of the meeting was first mailed to the shareholders or (ii) the day on which public
disclosure of such date was made. These Bylaw provisions also require information to be supplied about both the shareholder making such
nomination or proposal and the person nominated.
Limitations
on Directors’ and Officers’ Liability. Article 7 of the Company’s Articles provides that no director
of the Company shall be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director,
except for any appropriation in violation of fiduciary duties of any business opportunity; for acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law; under Section 79-4-8.33 of the MBCA; or for any transaction from
which the director derived an improper personal benefit. Article 8 of the Company’s Bylaws also provides for indemnification
of directors and officers as discussed below under the caption “Indemnification of Directors and Officers.”
DESCRIPTION OF SENIOR AND SUBORDINATED DEBT
SECURITIES
We may offer from time to time debt securities
in the form of either senior debt securities or subordinated debt securities. Unless otherwise specified in a prospectus supplement,
the debt securities will be our direct, unsecured obligations and will rank equally with all of our other unsecured and unsubordinated
indebtedness. We will issue debt securities under one or more separate indentures between us and a trustee to be identified in the applicable
prospectus supplement.
The following summary of the general terms and
provisions of the indenture is not complete (the text below refers to both indentures as the form of “indenture”).
Forms of indentures for senior indebtedness and subordinated indebtedness are included as exhibits to the registration statement of which
this prospectus forms a part. The indentures are substantially identical except as described below under “Subordinated Debt Securities”
in this section. You should read the indentures for provisions that may be important to you.
When we offer to sell a particular series of
debt securities, the prospectus supplement will describe the specific terms of the series, and it will also address whether the general
terms and provisions described below apply to the particular series of debt securities. Capitalized terms used in the summary have the
meanings specified in the forms of indenture.
General
As provided in a supplemental indenture, officers’
certificate or our board resolution, the particular terms of each series of debt securities will be adopted pursuant to authority granted
by our board of directors, which will be described in a prospectus supplement relating to such series. We can issue an unlimited amount
of debt securities under the indenture, in one or more series with the same or various maturities, at par, at a premium or at a discount.
Among other things, the prospectus supplement relating to a series of debt securities being offered will address the following terms
of the debt securities:
| · | the
title of the debt securities; |
| · | the
price(s), expressed as a percentage of the principal amount, at which we will sell the debt
securities; |
| · | whether
the debt securities will be senior or subordinated, and, if subordinated, any such provisions
that are different from those described below under “Subordinated Debt Securities;” |
| · | any
limit on the aggregate principal amount of the debt securities; |
| · | the
date(s) when principal payments are due on the debt securities; |
| · | the
interest rate(s) on the debt securities, which may be fixed or variable, per annum or
otherwise, and the method used to determine the rate(s), the dates on which interest will
begin to accrue and be payable, and any regular record date for the interest payable on any
interest payment date; |
| · | the
place(s) where principal of, premium and interest on the debt securities will be payable,
if by wire transfer, mail or other means, where the debt securities may be surrendered for
registration or exchange and where notices and demands in respect of the debt securities
may be served; |
| · | provisions
governing redemption of the debt securities, including any redemption or purchase requirements
pursuant to any sinking fund or analogous provisions or at the option of a holder of debt
securities, and the redemption price and other detailed terms and provisions of such repurchase
obligations; |
| · | the
denominations in which the debt securities will be issued, if other than minimum denominations
of $1,000 and any integral multiple of $1,000 in excess thereof; |
| · | whether
the debt securities will be issued in the form of certificated debt securities or global
debt securities; |
| · | the
portion of the principal of the debt securities payable upon declaration of acceleration
of the maturity date, if other than the entire principal amount; |
| · | any
additional or modified events of default from those described in this prospectus or in the
indenture and any change in the acceleration provisions described in this prospectus or in
the indenture; |
| · | any
additional or modified covenants from those described in this prospectus or in the indenture
with respect to the debt securities; |
| · | any
depositaries, interest rate calculation agents, exchange rate calculation agents or other
agents with respect to the debt securities; and |
| · | any
other specific terms of such debt securities. |
In addition, we may issue convertible debt securities.
Any conversion provisions of a particular series of debt securities will be set forth in the officers’ certificate, board resolution
or supplemental indenture related to that series of debt securities and will be described in the relevant prospectus supplement. To the
extent applicable, conversion may be mandatory, at the option of the holder or at our option, in which case the number of shares of common
or preferred stock to be received upon conversion would be calculated as of a time and in the manner stated in the prospectus supplement.
The applicable prospectus supplement will provide
an overview of the U.S. federal income tax considerations and other special considerations applicable to any debt securities we offer
for sale.
Transfer and Exchange
As described in the applicable prospectus supplement,
each debt security will be represented by either a certificate issued in definitive registered form (we will refer to any debt security
represented by a certificated security as a “certificated debt security”) or one or more global securities registered in
the name of a depositary, or its nominee (we will refer to any debt security represented by a global debt security as a “book-entry
debt security”), in the aggregate principal amount of the series of debt securities. Except as described below under the heading
“Global Debt Securities and Book-Entry System,” book-entry debt securities will not be certificated.
Certificated Debt Securities
You can transfer certificated debt securities
(and the right to receive the principal of, premium and interest thereon) only by surrendering the certificate representing those certificated
debt securities. Either we or the trustee will reissue the existing certificate, or issue a new certificate, to the new holder.
You may transfer or exchange certificated debt
securities at any office we maintain for this purpose in accordance with the terms of the indenture. There is no service charge, but
we may require payment of a sum sufficient to cover any taxes or other governmental charges payable in connection with a transfer or
exchange.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry
debt securities will be deposited with, or on behalf of, The Depository Trust Company (which we refer to below as “DTC” or
the “depositary”), as the depositary, and registered in its (or its nominee’s) name. DTC is a limited-purpose trust
company and a “banking organization” organized under New York law, a member of the Federal Reserve System, a “clearing
corporation” within in the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant
to Section 17A of the Exchange Act. We understand that DTC intends to follow the following procedures with respect to book-entry
debt securities.
Ownership of beneficial interests in book-entry
debt securities will be limited to “participants” or persons that may hold interests through participants (sometimes called
“indirect participants”). A participant is a person having an account with the depositary for the related global debt security,
typically broker-dealers, banks, trust companies, clearing corporations and certain other organizations. Upon the issuance of a global
debt security, the depositary will credit the participants’ accounts on its book-entry registration and transfer system with the
respective principal amounts of the book-entry debt securities owned by such participants; the depositary will have no knowledge of the
underlying beneficial owners of the book-entry debt securities owned by participants. Any dealers, underwriters or agents participating
in the distribution of the book-entry debt securities will designate accounts to be credited. Ownership of book-entry debt securities
will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the depositary for
the related global debt security (with respect to interests of participants) and on the records of participants (with respect to interests
of indirect participants). Some states may legally require certain purchasers to take physical delivery of such securities, which may
impair your ability to own, transfer or pledge beneficial interests in book-entry debt securities.
So long as DTC (or its nominee) is the registered
owner of a global debt security, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry
debt securities represented by such global debt security for all purposes under the indenture. This means that, except as described below,
beneficial owners of book-entry debt securities will not be entitled to have securities registered in their names or to receive physical
delivery of a certificate in definitive form nor will such beneficial owners be considered the owners or holders of those securities
under the indenture. Accordingly, to exercise any rights of a holder under the indenture each person beneficially owning book-entry debt
securities must rely on DTC’s procedures for the related global debt security and, if such person is not a participant, on the
procedures of the participant through which such person owns its interest. As a beneficial owner of book-entry debt securities, information
regarding your holdings will come through the participant, or indirect participant, through which you own such securities.
Notwithstanding the above, under existing industry
practice, the depositary may authorize persons on whose behalf it holds a global debt security to exercise certain of a holder’s
rights. For purposes of obtaining any consents or directions required to be given by holders of the debt securities under the indenture,
we, the trustee and our respective agents will treat DTC as the holder of a debt security and/or any persons specified in a written statement
of the depositary with respect to that global debt security.
All payments of principal of, and premium and
interest on, book-entry debt securities will be paid to DTC (or its nominee) as the registered holder of the related global debt security,
and any redemption notices will be sent directly to DTC. Neither we, the trustee nor any other agent of ours or agent of the trustee
will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining, supervising or reviewing any records relating to beneficial ownership interests.
We expect DTC, upon receipt of any payment of principal of, premium or interest on a global debt security, to immediately credit participants’
accounts with payments ratably according to the respective amounts of book-entry debt securities held by each participant. We also expect
that payments by participants to owners of beneficial interests in book-entry debt securities held through those participants will be
governed by standing customer instructions and customary practices, similar to those for securities held in “street name.”
We will issue certificated debt securities in
exchange for beneficial interests in each global debt security if the depositary at any time cannot or will not continue as depositary
or ceases to be a clearing agency registered under the Exchange Act, and we fail to appoint a successor depositary registered as a clearing
agency under the Exchange Act within 90 days. In addition, we may at any time and in our sole discretion decide not to have the book-entry
debt securities represented by global debt securities; in that event, we will issue certificated debt securities in exchange for the
global debt securities of that series. If an event of default with respect to the book-entry debt securities represented by those global
debt securities has occurred and is continuing, holders may exchange global debt securities for certificated debt securities.
We have obtained the foregoing information concerning
DTC and its book-entry system from sources we believe to be reliable, but we take no responsibility for the accuracy of this information.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions affording holders of the debt securities protection, such as prior consent
or acceleration rights, in the event we agree to a change in control or a highly leveraged transaction (whether or not such transaction
results in a change in control), which could adversely affect holders of debt securities.
Covenants
The applicable prospectus supplement will describe
any covenants applicable to any debt securities we offer for sale.
Consolidation, Merger and Sale of Assets
We may not consolidate or merge with, or sell
or lease all or substantially all of our properties and assets to, any person, which we refer to as a “successor,” unless:
| · | we
are the surviving corporation or the successor (if not us) is a corporation organized and
existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations
on the debt securities and under the indenture; |
| · | immediately
after giving effect to the transaction, no event of default, and no event which after the
giving of notice or lapse of time or both, would become an event of default, shall have occurred
and be continuing under the indenture; and |
| · | certain
other conditions are met. |
Events of Default
For any series of debt securities, in addition
to any event of default described in the prospectus supplement applicable to that series, an event of default will include the following
events unless in the establishing board resolution, supplemental indenture or officers’ certificate, it is provided that such series
of debt securities shall not have the benefit of said event of default:
| · | default
in the payment when due of any interest on any debt security of that series, and continuance
of such default for a period of 30 days (unless we deposit the entire amount of such payment
with the trustee or with a paying agent prior to the expiration of such 30-day period); |
| · | default
in the payment when due of principal of any debt security of that series; |
| · | default
in the deposit when due of any sinking fund payment in respect of any debt security of that
series; |
| · | default
in the performance or breach of any other covenant or warranty in the indenture that applies
to such series, which default continues (without such default or breach having been waived
in accordance with the provisions of the indenture) for a period of 90 days after we have
received written notice of the failure to perform in the manner specified in the indenture;
and |
| · | certain
events of bankruptcy, insolvency or reorganization involving us. |
The applicable prospectus supplement will explain
whether or not an event of default with respect to one series of debt securities will constitute a cross-default with respect to any
other series of debt securities (except that certain events of bankruptcy, insolvency or reorganization will always constitute cross-defaults).
If an event of default with respect to any outstanding
debt securities occurs and is continuing, then the trustee or the holders of 25% in aggregate principal amount of the outstanding debt
securities of that series may, by written notice to us (and to the trustee if given by the holders), accelerate the payment of the principal
(or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms
of that series) of and accrued and unpaid interest, if any, on all debt securities of that series. Such acceleration is automatic (without
any notice required) in the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization. Following
acceleration, payments on our subordinated debt securities, if any, will be subject to the subordination provisions described below under
“Subordinated Debt Securities.” At any time after acceleration with respect to debt securities of any series, but before
the trustee has obtained a court judgment or decree for payment of the amounts due, the holders of a majority in principal amount of
the outstanding debt securities of that series may rescind and annul the acceleration if all events of default, other than the non-payment
of accelerated principal and interest, if any, with respect to debt securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in the indenture. The prospectus supplement relating to any series of debt securities
that are discount securities will contain particular provisions relating to acceleration of a portion of the principal amount of such
discount securities upon the occurrence of an event of default.
Each indenture will provide that the trustee
will be under no obligation to exercise any rights or powers under such indenture at the request of any holder of outstanding debt securities
unless the trustee is indemnified against any loss, liability or expense. Subject to certain rights of the trustee, the holders of a
majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect
to the debt securities of that series.
No holder of any debt security may institute
any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy
under the indenture, unless:
| · | that
holder has previously given to the trustee written notice of a continuing event of default
with respect to debt securities of that series; |
| · | the
holders of at least a majority in principal amount of the outstanding debt securities of
that series have requested the trustee in writing (and offered indemnity or security satisfactory
to the trustee) to institute the proceeding (and have not subsequently given contrary instructions),
and the trustee has failed to institute the proceeding within 60 days; and |
| · | certain
other conditions are met. |
Notwithstanding the foregoing, the holder of
any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that
debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Under the indenture we must furnish the trustee
a statement as to compliance with the indenture within 120 days after the end of our fiscal year. The indenture provides that, other
than with respect to payment defaults, the trustee may withhold notice to the holders of debt securities of any series of a default or
event of default if it in good faith determines that withholding notice is in the interests of the holders of those debt securities.
Modification and Waiver
We may amend or supplement the indenture or a
series of debt securities if the holders of at least a majority in principal amount of the outstanding debt securities of each series
affected by the modifications or amendments consent thereto. We may not make any amendment or waiver without the consent of the specific
holder of an affected debt security then outstanding if that amendment or waiver will:
| · | reduce
the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| · | reduce
the rate of, or extend the time for payment of, interest (including default interest) on
any debt security; |
| · | reduce
the principal or change the stated maturity of any debt security or reduce the amount of,
or postpone the date fixed for, the payment of any sinking fund or analogous obligation; |
| · | reduce
the principal amount of discount securities payable upon acceleration of maturity; |
| · | waive
a default or event of default in the payment of the principal of or interest, if any, on
any debt security (except a rescission of acceleration by the holders of at least a majority
in aggregate principal amount of the then outstanding debt securities of that series and
a waiver of the payment default that resulted from such acceleration); |
| · | make
the principal of or interest, if any, on any debt security payable in any currency other
than that stated in the debt security; |
| · | make
any change to certain provisions of the indenture relating to, among other things, holders’
rights to receive payment of the principal of, premium and interest on those debt securities
and to institute suit for the enforcement of any such payment and to waivers or amendments;
or |
| · | waive
a redemption payment with respect to any debt security. |
Except for certain specified provisions, the
holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of all holders waive
our compliance with provisions of the indenture. In certain circumstances, the indenture can be amended without the consent of the holders.
The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of all holders waive any
past default under the indenture with respect to that series and its consequences, except a payment default or a default of a covenant
or provision which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected;
provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that resulted from such acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance
We may deposit with the trustee, in trust, cash
or U.S. government securities in an amount that, which through the payment of interest and principal in accordance with their terms,
will provide, not later than one day before the due date of any payment of money, an amount in cash, which is sufficient in the opinion
of our independent public accountants to make all payments of principal and interest on, and any mandatory sinking fund payments in respect
of, the debt securities of that series on the due dates for such payments in accordance with the terms of the indenture and those debt
securities. If we make such a deposit, unless otherwise provided under the applicable series of debt securities, we will be discharged
from any and all obligations in respect of the debt securities of such series (except for obligations relating to the transfer or exchange
of debt securities and the replacement of stolen, lost or mutilated debt securities and relating to maintaining paying agencies and the
treatment of funds held by paying agents and certain rights of the trustee and our obligations with respect thereto). However, this discharge
may occur only if, among other things, we have delivered to the trustee a legal opinion stating that we have received from, or there
has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a
change in the applicable U.S. federal income tax law, in either case to the effect that, and, based thereon confirming that, the holders
of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the
deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the
same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants
Under the indenture (and unless otherwise provided
by the terms of the applicable series of debt securities), upon making the deposit and delivering the legal opinion described in “Legal
Defeasance” above, we will not need to comply with the covenants described under the heading “Consolidation, Merger and Sale
of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants that may be set forth in
the applicable prospectus supplement, and any such noncompliance will not constitute a default or an event of default with respect to
the debt securities of that series, or covenant defeasance.
Covenant Defeasance and Events of Default
If we exercise our option to effect covenant
defeasance with respect to any series of debt securities and the debt securities of that series are declared due and payable because
of the occurrence of any event of default, the amounts on deposit with the trustee will be sufficient to pay amounts due on the debt
securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of
that series at the time of the acceleration resulting from the event of default. We will remain liable for those payments.
The Trustee
The indentures limit the right of the trustee,
should it become a creditor of us, to obtain payment of claims or secure its claims. The trustee is permitted to engage in certain other
transactions. However, if the trustee acquires any conflicting interest (within the meaning of the Trust Indenture Act), and there is
a default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict or resign.
Subordinated Debt Securities
The indenture will govern the extent to which
payment on any subordinated debt securities will be subordinated to the prior payment in full of all of our senior indebtedness. The
subordinated debt securities also are effectively subordinated to all debt and other liabilities, including trade payables and lease
obligations, if any, of our subsidiaries.
Upon any distribution of our assets upon any
dissolution, winding up, liquidation or reorganization, the payment of principal and interest on subordinated debt securities will be
subordinated to the prior payment in full of all senior indebtedness in cash or other payment satisfactory to the holders of such senior
indebtedness. If subordinated debt securities are accelerated because of an event of default, the holders of any senior indebtedness
would be entitled to payment in full in cash or other payment satisfactory to such holders of all senior indebtedness obligations before
the holders of the subordinated debt securities are entitled to receive any payment or distribution. The indenture requires us or the
trustee to promptly notify holders of designated senior indebtedness of any acceleration of payment of the subordinated debt securities.
We may not make any payment on the subordinated
debt securities, including upon redemption (whether at the holder’s or our option) if:
| · | a
default in the payment of the principal, premium, if any, interest, rent or other obligations
in respect of any senior indebtedness occurs and is continuing beyond any applicable grace
period (called a “payment default”); or |
| · | a
default (other than a payment default) with respect to designated senior indebtedness occurs
and is continuing that permits holders of designated senior indebtedness to accelerate its
maturity, and the trustee receives a notice of such default (called a “payment blockage
notice”) from us or any other person permitted to give such notice under the indenture
(called a “non-payment default”). |
We may resume payments and distributions on the
subordinated debt securities, in the case of a payment default, upon the date on which such default is cured or waived or ceases to exist;
and, in the case of a non-payment default, the earlier of the date on which such nonpayment default is cured or waived and 179 days after
the date on which the payment blockage notice is received, if the maturity of the designated senior indebtedness has not been accelerated,
unless the indenture otherwise prohibits such payment or distribution at the time of such payment or distribution.
No new payment blockage notice may be given unless
and until 365 days have elapsed since the initial effectiveness of the immediately prior payment blockage notice and all scheduled payments,
premium, if any, and interest on the debt securities that have come due have been paid in full in cash. A non-payment default existing
or continuing on the date of delivery of any payment blockage notice cannot be the basis for any later payment blockage notice.
If the trustee or any holder of the notes receives
any payment or distribution of our assets in contravention of the foregoing subordination provisions, then such payment or distribution
will be held in trust for the benefit of holders of senior indebtedness or their representatives to the extent necessary to make payment
in full in cash or payment satisfactory to the holders of senior indebtedness of all unpaid senior indebtedness as described in the indenture.
In the event of our bankruptcy, dissolution or
reorganization, holders of senior indebtedness may receive more, ratably, and holders of the subordinated debt securities may receive
less, ratably, than our other creditors (including our trade creditors). This subordination will not prevent the occurrence of any event
of default under the indenture.
The indenture does not prohibit us from incurring
debt, including senior indebtedness. We may from time to time incur additional debt, including senior indebtedness.
We are obligated to pay reasonable compensation
to the trustee, reimburse the trustee for reasonable expenses and to indemnify the trustee against certain losses, liabilities or expenses
it incurs in connection with its duties relating to the subordinated debt securities. The trustee’s claims for these payments will
generally be senior to those of noteholders in respect of all funds collected or held by the trustee and will not be subject to subordination.
Certain Definitions
“Indebtedness” means:
(1) all indebtedness, obligations and other liabilities
(contingent or otherwise) for borrowed money (including our obligations in respect of overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements, and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to
the whole of the assets of such person or to only a portion thereof) (other than any account payable or other accrued current liability
or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services);
(2) all reimbursement obligations and other liabilities
(contingent or otherwise) with respect to letters of credit, bank guarantees or bankers’ acceptances;
(3) all obligations and liabilities (contingent or
otherwise) in respect of leases required, in conformity with generally accepted accounting principles, to be accounted for as capitalized
lease obligations on our balance sheet;
(4) all obligations and other liabilities (contingent
or otherwise) under any lease or related document (including a purchase agreement) in connection with the lease of real property which
contractually obligates us to purchase or cause a third party to purchase the leased property and thereby guarantee a minimum residual
value of the leased property to the lessor and the obligations of such person under such lease or related document to purchase or to
cause a third party to purchase such leased property;
(5) all obligations (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreement or other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement;
(6) all
direct or indirect guaranties or similar agreements in respect of, and obligations or liabilities (contingent or otherwise), to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of indebtedness, obligations or liabilities of others of
the type described in (1) through (5) above;
(7) any indebtedness or other obligations described
in (1) through (6) above secured by any mortgage, pledge, lien or other encumbrance existing on property which we own or hold,
regardless of whether the indebtedness or other obligation secured thereby shall be assumed by us; and
(8) any and all refinancings, replacements, deferrals,
renewals, extensions and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (1) through (7) above.
“Senior indebtedness” means the principal,
premium, if any, interest, including any interest accruing after bankruptcy, additional amounts, if any, and rent or termination payment
on or other amounts due on our current or future indebtedness, whether created, incurred, assumed, guaranteed or in effect guaranteed
by us, including any deferrals, renewals, extensions, refundings, amendments, modifications or supplements to the above. Senior indebtedness
does not include:
| · | indebtedness
that expressly provides that it shall not be senior in right of payment to subordinated debt
securities or expressly provides that it is on the same basis or junior to subordinated debt
securities; and |
| · | our
indebtedness to any of our majority-owned subsidiaries. |
Governing Law
Unless otherwise set forth in the prospectus
supplement applicable to the particular series of debt securities, the indenture and the debt securities will be governed by, and construed
in accordance with, the laws of the State of New York.
DESCRIPTION OF DEPOSITARY SHARES
The following briefly summarizes the general provisions
of the depositary shares representing a fraction of a share of preferred stock of a specific series, or “depositary shares,”
and depositary receipts (as defined below) that we may issue from time to time and which would be important to holders of depositary
receipts. The specific terms of any depositary shares or depositary receipts, including pricing and related terms, will be disclosed
in the applicable prospectus supplement. The prospectus supplement will also state whether any of the general provisions summarized below
will apply to the depositary shares or depositary receipts being offered. The following description and any description in a prospectus
supplement is a summary only and is subject to, and qualified in its entirety by reference to the terms and provisions of the deposit
agreement(s), which we will file with the SEC in connection with an issuance of depositary shares.
Description of Depositary Shares
We may offer depositary shares evidenced by receipts
for such depositary shares, which we sometimes refer to as “depositary receipts.” Each depositary receipt represents a fraction
of a share of the particular series of preferred stock issued and deposited with a depositary. The fraction of a share of preferred stock
which each depositary share represents will be set forth in the applicable prospectus supplement.
We will deposit the shares of any series of preferred
stock represented by depositary shares according to the provisions of a deposit agreement to be entered into between us and a bank or
trust company, which we will select as our preferred stock depositary, and which may be the same institution that serves as an indenture
trustee. The depositary must have its principal office in the United States and have combined capital and surplus of at least $50,000,000.
We will name the depositary in the applicable prospectus supplement. Each owner of a depositary share will be entitled to all the rights
and preferences of the underlying preferred stock in proportion to the applicable fraction of a share of preferred stock represented
by the depositary share. These rights may include dividend, voting, redemption, conversion and liquidation rights. The depositary will
send the holders of depositary shares all reports and communications that we deliver to the depositary and which we are required to furnish
to the holders of depositary shares. We may issue depositary receipts in temporary, definitive or book-entry form.
Withdrawal of Preferred Stock
A holder of depositary shares may receive the
number of whole shares of the series of preferred stock and any money or other property represented by the holder’s depositary
receipts after surrendering the depositary receipts at the corporate trust office of the depositary. Partial shares of preferred stock
will not be issued. If the surrendered depositary shares exceed the number of depositary shares that represent the number of whole shares
of preferred stock the holder wishes to withdraw, then the depositary will deliver to the holder at the same time a new depositary receipt
evidencing the excess number of depositary shares. Once the holder has withdrawn the preferred stock, the holder will not be entitled
to re-deposit such preferred stock under the deposit agreement or to receive depositary shares in exchange for such preferred stock.
Dividends and Other Distributions
Holders of depositary shares of any series will
receive their pro rata share of cash dividends or other cash distributions received by the depositary on the preferred stock of that
series held by it. Each holder will receive these distributions in proportion to the number of depositary shares owned by the holder.
The depositary will distribute only whole United States dollars and cents. The depositary will add any fractional cents not distributed
to the next sum received for distribution to record holders of depositary shares. In the event of a non-cash distribution, the depositary
will distribute property to the record holders of depositary shares, unless the depositary determines that it is not feasible to make
such a distribution. If this occurs, the depositary, with our approval, may sell the property and distribute the net proceeds from the
sale to the holders.
Redemption of Depositary Shares
If a series of preferred stock represented by
depositary shares is subject to redemption, then we will give the necessary proceeds to the depositary. The depositary will then redeem
the depositary shares using the funds they received from us for the preferred stock. The depositary will notify the record holders of
the depositary shares to be redeemed not less than 30 days nor more than 60 days before the date fixed for redemption at the
holders’ addresses appearing in the depositary’s books. The redemption price per depositary share will be equal to the redemption
price payable per share for the applicable series of the preferred stock and any other amounts per share payable with respect to that
series of preferred stock multiplied by the fraction of a share of preferred stock represented by one depositary share. Whenever we redeem
shares of a series of preferred stock held by the depositary, the depositary will redeem the depositary shares representing the shares
of preferred stock on the same day. If fewer than all the depositary shares of a series are to be redeemed, the depositary shares will
be selected by lot, ratably or by such other equitable method as we and the depositary may determine.
Upon and after the redemption of shares of the
underlying series of preferred stock, the depositary shares called for redemption will no longer be considered outstanding. Therefore,
all rights of holders of the depositary shares will then cease, except that the holders will still be entitled to receive any cash payable
upon the redemption and any money or other property to which the holder was entitled at the time of redemption.
Voting Rights
Upon receipt of notice of any meeting at which
the holders of preferred stock of the related series are entitled to vote, the depositary will notify holders of depositary shares of
the upcoming vote and arrange to deliver our voting materials to the holders. The record date for determining holders of depositary shares
that are entitled to vote will be the same as the record date for the related series of preferred stock. The materials the holders will
receive will (1) describe the matters to be voted on and (2) explain how the holders, on a certain date, may instruct the depositary
to vote the shares of preferred stock underlying the depositary shares. For instructions to be valid, the depositary must receive them
on or before the date specified. The depositary will attempt, as far as practical, to vote the shares as instructed by the holder. We
will cooperate with the depositary to enable it to vote as instructed by holders of depositary shares. If any holder does not instruct
the depositary how to vote the holder’s shares, the depositary will abstain from voting those shares.
Conversion or Exchange
The depositary will convert or exchange all depositary
shares on the same day that the preferred stock underlying the depositary shares is converted or exchanged. In order for the depositary
to do so, we will deposit with the depositary any other preferred stock, common stock or other securities into which the preferred stock
is to be converted or for which it will be exchanged.
The exchange or conversion rate per depositary
share will be equal to the exchange or conversion rate per share of preferred stock, multiplied by the fraction of a share of preferred
stock represented by one depositary share. All amounts per depositary share payable by us for dividends that have accrued on the preferred
stock to the exchange or conversion date that have not yet been paid shall be paid in appropriate amounts on the depositary shares.
The depositary shares, as such, cannot be converted
or exchanged into other preferred stock, common stock, securities of another issuer or any other of our securities or property. Nevertheless,
if so specified in the applicable prospectus supplement, a holder of depositary shares may be able to surrender the depositary receipts
to the depositary with written instructions asking the depositary to instruct us to convert or exchange the preferred stock represented
by the depositary shares into other shares of preferred stock or common stock or to exchange the preferred stock for securities of another
issuer. If the depositary shares carry this right, upon the payment of applicable fees and taxes, if any, we will cause the conversion
or exchange of the preferred stock using the same procedures as we use for the delivery of preferred stock. If a holder is only surrendering
part of the depositary shares represented by a depositary receipt for conversion, new depositary receipts will be issued for any depositary
shares that are not surrendered.
Amendment and Termination of the Deposit Agreement
We may agree with the depositary to amend the
deposit agreement and the form of depositary receipt without consent of the holder at any time. However, if the amendment adds or increases
fees or charges payable by holders of the depositary shares or prejudices an important right of holders, it will only become effective
with the approval of holders of at least a majority of the affected depositary shares then outstanding. If an amendment becomes effective,
holders are deemed to agree to the amendment and to be bound by the amended deposit agreement if they continue to hold their depositary
receipts.
The deposit agreement will automatically terminate
if:
| · | all
outstanding depositary shares have been redeemed and all amounts payable upon redemption
have been paid; |
| · | each
share of preferred stock held by the depositary has been converted into or exchanged for
common stock, other preferred stock or other securities; or |
| · | a
final distribution in respect of the preferred stock held by the depositary has been made
to the holders of depositary receipts in connection with our liquidation, dissolution or
winding-up. |
We may also terminate the deposit agreement at
any time. Upon such event, the depositary will give notice of termination to the holders not less than 30 days before the termination
date. Once depositary receipts are surrendered to the depositary, it will send to each holder the number of whole and fractional shares
of the series of preferred stock underlying that holder’s depositary receipts, provided that, at our election we may pay cash in
lieu of fractional shares of preferred stock that may be issuable.
Charges of Depositary and Expenses
We will pay all transfer and other taxes and governmental
charges in connection with the establishment of the depositary arrangements. We will pay all charges and fees of the depositary for the
initial deposit of the preferred stock, the depositary’s services and redemption of the preferred stock. Holders of depositary
shares will pay transfer and other taxes and governmental charges and the charges that are provided in the deposit agreement to be for
the holder’s account.
Limitations on Our Obligations and Liability to Holders of Depositary
Receipts
The deposit agreement may limit our obligations
and the obligations of the depositary. It may also limit our liability and the liability of the depositary as follows:
| · | We
and the depositary will only be obligated to take the actions specifically set forth in the
deposit agreement in good faith; |
| · | We
and the depositary will not be liable if either is prevented or delayed by law or circumstances
beyond our or its control from performing our or its obligations under the deposit agreement; |
| · | We
and the depositary will not be liable if either exercises discretion permitted under the
deposit agreement; |
| · | We
and the depositary will have no obligation to become involved in any legal or other proceeding
related to the depositary receipts or the deposit agreement on behalf of the holders of depositary
receipts or any other party, unless we and the depositary are provided with satisfactory
indemnity; and |
| · | We
and the depositary will be permitted to rely upon any written advice of counsel or accountants
and on any documents we believe in good faith to be genuine and to have been signed or presented
by the proper party. |
In the deposit agreement, we may agree to indemnify
the depositary under certain circumstances.
Resignation and Removal of Depositary
The depositary may resign at any time by notifying
us of its election to do so. In addition, we may remove the depositary at any time. Such resignation or removal will take effect when
we appoint a successor depositary and it accepts the appointment. We must appoint the successor depositary within 60 days after
delivery of the notice of resignation or removal and the new depositary must be a bank or trust company having its principal office in
the United States and having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF PURCHASE CONTRACTS
We also may issue purchase contracts, including
contracts obligating holders to purchase from us, and obligating us to sell to holders, a fixed or varying number of debt or equity securities
at a future date or dates. The consideration for such securities may be fixed at the time that the purchase contracts are issued or may
be determined by reference to a specific formula set forth in the purchase contracts. Any purchase contract may include anti-dilution
provisions to adjust the number of shares issuable pursuant to such purchase contract upon the occurrence of certain events.
The purchase contracts may be issued separately
or as a part of units consisting of a purchase contract and other securities. These contracts, and the holders’ obligations to
purchase our securities under the purchase contracts, may be secured by cash, certificates of deposit, U.S. government securities that
may mature prior to, or simultaneously with, the maturity of the purchase contract, standby letters of credit from an affiliated U.S.
bank that is FDIC-insured or other collateral satisfactory to the Federal Reserve Board. The purchase contracts may require us to make
periodic payments to holders of the purchase units, or vice versa, and such payments may be unsecured or prefunded and may be paid on
a current or on a deferred basis as set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
We also may offer two or more of the securities
described in this prospectus in the form of a “unit,” including pursuant to a unit agreement. The unit may be transferable
only as a whole, or the securities comprising a unit may, as described in the applicable prospectus supplement, be separated and transferred
by the holder separately. There may or may not be an active market for units or the underlying securities, and not all the securities
comprising a unit may be listed or traded on a securities exchange or market.
DESCRIPTION OF WARRANTS
General
We may issue warrants in one or more series to
purchase common stock, preferred stock, senior debt securities, subordinated debt securities, other securities or any combination of
these securities. Warrants may be issued independently or together with any underlying securities and may be attached to or separate
from the underlying securities. We may issue each series of warrants under a separate warrant agreement to be entered into between us
and a warrant agent. If applicable, the warrant agent would act solely as our agent in connection with the warrants of such series and
would not assume any obligation or relationship of agency for or on behalf of holders or beneficial owners of warrants. The following
outlines some of the general terms and provisions of the warrants. Further terms of the warrants and a description of the applicable
warrant agreement will be provided in the applicable prospectus supplement. The following description and any description of the warrants
in a prospectus supplement are not complete and are subject to and qualified in their entirety by reference to the terms and provisions
of the warrant agreement, which we will file with the SEC in connection with an issuance of any warrants.
The applicable prospectus supplement will describe
the terms of any warrants, including the following, as may be applicable:
| · | the
title of the warrants; |
| · | the
total number of warrants to be issued; |
| · | the
consideration for which we will issue the warrants, including the applicable currency or
currencies; |
| · | anti-dilution
provisions to adjust the number of shares of our common stock or other securities to be delivered
upon exercise of the warrants; |
| · | the
designation and terms of the underlying securities purchasable upon exercise of the warrants; |
| · | the
price at which and the currency or currencies in which investors may purchase the underlying
securities purchasable upon exercise of the warrants; |
| · | the
dates on which the right to exercise the warrants will commence and expire; |
| · | the
procedures and conditions relating to the exercise of the warrants; |
| · | whether
the warrants will be in registered or bearer form; |
| · | information
with respect to book-entry registration and transfer procedures, if any; |
| · | the
minimum or maximum amount of warrants which may be exercised at any one time; |
| · | the
designation and terms of the underlying securities with which the warrants are issued and
the number of warrants issued with each underlying security; |
| · | the
date on and after which the warrants and securities issued with the warrants will be separately
transferable; |
| · | a
discussion of material United States federal income tax considerations; |
| · | the
identity of any warrant agent; and |
| · | any
other terms of the warrants, including terms, procedures and limitations relating to the
exchange, transfer and exercise of the warrants. |
Warrant certificates may be exchanged for new
warrant certificates of different denominations, and warrants may be exercised at the warrant agent’s corporate trust office or
any other office indicated in the applicable prospectus supplement. Prior to the exercise of their warrants, holders of warrants exercisable
for debt securities will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be
entitled to payments of principal (or premium, if any) or interest, if any, on the debt securities purchasable upon such exercise. Prior
to the exercise of their warrants, holders of warrants exercisable for shares of common stock, preferred stock or depositary shares will
not have any rights of holders of the common stock, preferred stock or depositary shares purchasable upon such exercise, including any
rights to vote such shares or to receive any distributions or dividends thereon.
Exercise of Warrants
A warrant will entitle the holder to purchase
for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable
prospectus supplement. Warrants may be exercised at any time prior to the close of business on the expiration date and in accordance
with the procedures set forth in the applicable prospectus supplement. Upon and after the close of business on the expiration date, unexercised
warrants will be void and have no further force, effect or value.
Enforceability of Rights; Governing Law
The holders of warrants, without the consent of
the warrant agent, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding
against us to enforce their rights to exercise and receive the securities purchasable upon exercise of their warrants. Unless otherwise
stated in the applicable prospectus supplement, each issue of warrants and the applicable warrant agreement will be governed by the laws
of the State of Mississippi.
DESCRIPTION OF RIGHTS
The following briefly summarizes the general provisions
of rights to purchase additional shares of our common stock or any series of preferred stock, which we may issue. The specific terms
of any rights, including the period during which the rights may be exercised, the manner of exercising such rights, and the transferability
of rights, will be disclosed in the applicable prospectus supplement.
General
We may distribute rights, which may or may not
be transferable, to the holders of our common stock or any series of our preferred stock as of a record date set by our board of directors,
at no cost to such holders. Each holder will be given the right to purchase a specified number of whole shares of our common stock or
preferred stock for every share of our common stock or share of a series of preferred stock that the holder thereof owned on such record
date, as set forth in the applicable prospectus supplement. The rights will be evidenced by rights certificates, which may be in definitive
or book-entry form. Each right will entitle the holder to purchase shares of our common stock or a series of preferred stock at a rate
and price per share to be established by our board of directors, as set forth in the applicable prospectus supplement. If holders of
rights wish to exercise their rights, they must do so before the expiration date of the rights offering, as set forth in the applicable
prospectus supplement. Upon the expiration date, the rights will expire and will no longer be exercisable, unless, in our sole discretion
prior to the expiration date, we extend the rights offering.
Exercise Price
Our board of directors will determine the exercise
price or prices for the rights based upon a number of factors, including, without limitation, our business prospects; our capital requirements;
the price or prices at which an underwriter or standby purchasers may be willing to purchase shares that remain unsold in the rights
offering; and general conditions in the securities markets, especially for securities of financial institutions.
The subscription price may or may not reflect
the actual or long-term fair value of the common stock or preferred stock offered in the rights offering. We provide no assurances as
to the market values or liquidity of any rights issued, or as to whether or not the market prices of the common stock or preferred stock
subject to the rights will be more or less than the rights’ exercise price during the term of the rights or after the rights expire.
Exercising Rights; Fees and Expenses
The manner of exercising rights will be set forth
in the applicable prospectus supplement. Any subscription agent or escrow agent will be set forth in the applicable prospectus supplement.
We will pay all fees charged by any subscription agent and escrow agent in connection with the distribution and exercise of rights. Rights
holders will be responsible for paying all other commissions, fees, taxes or other expenses incurred in connection with their transfer
of rights that are transferable. Neither we nor the subscription agent will pay such expenses.
Expiration of Rights
The applicable prospectus supplement will set
forth the expiration date and time (“Expiration Date”) for exercising rights. If holders of rights do not exercise their
rights prior to such time, their rights will expire and will no longer be exercisable and will have no value.
We will extend the Expiration Date as required
by applicable law and may, in our sole discretion, extend the Expiration Date. If we elect to extend the Expiration Date, we will issue
a press release announcing such extension prior to the scheduled Expiration Date.
Withdrawal and Termination
We may withdraw the rights offering at any time
prior to the Expiration Date for any reason. We may terminate the rights offering, in whole or in part, at any time before completion
of the rights offering if there is any judgment, order, decree, injunction, statute, law or regulation entered, enacted, amended or held
to be applicable to the rights offering that in the sole judgment of our board of directors would or might make the rights offering or
its completion, whether in whole or in part, illegal or otherwise restrict or prohibit completion of the rights offering. We may waive
any of these conditions and choose to proceed with the rights offering even if one or more of these events occur. If we terminate the
rights offering, in whole or in part, all affected rights will expire without value, and all subscription payments received by the subscription
agent will be returned promptly without interest.
Rights of Subscribers
Holders of rights will have no rights as shareholders
with respect to the shares of common stock or preferred stock for which the rights may be exercised until they have exercised their rights
by payment in full of the exercise price and in the manner provided in the applicable prospectus supplement, and such shares of common
stock or preferred stock, as applicable, have been issued to such persons. Holders of rights will have no right to revoke their subscriptions
or receive their monies back after they have completed and delivered the materials required to exercise their rights and have paid the
exercise price to the subscription agent. All exercises of rights will be final and cannot be revoked by the holder of rights.
Regulatory Limitations
We will not be required to issue any person or
group of persons shares of our common stock or preferred stock pursuant to the rights offering if, in our sole opinion, such person would
be required to give prior notice to or obtain prior approval from, any state or federal governmental authority to own or control such
shares if, at the time the rights offering is scheduled to expire, such person has not obtained such clearance or approval in form and
substance reasonably satisfactory to us.
Standby Agreements
We may enter into one or more separate agreements
with one or more standby underwriters or other persons to purchase, for their own account or on our behalf, any shares of our common
stock or preferred stock not subscribed for in the rights offering. The terms of any such agreements will be described in the applicable
prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities
covered in this prospectus in any of three ways (or in any combination):
| · | through
underwriters or dealers; |
| · | directly
to a limited number of purchasers or to a single purchaser; or |
Each time that we use this
prospectus to sell securities, we will also provide a prospectus or prospectus supplement that contains the specific terms of the offering.
The prospectus or prospectus supplement will set forth the terms of the offering of the securities, including:
| · | the
name or names of any underwriters, dealers or agents and the amounts of any securities underwritten
or purchased by each of them; and |
| · | the
public offering price of the common stock and the proceeds to us and any discounts, commissions
or concessions allowed or reallowed or paid to dealers. |
Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used
in the sale of any securities, the securities will be acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters,
or directly by underwriters. Generally, the underwriters’ obligations to purchase the securities will be subject to certain conditions
precedent. The underwriters will be obligated to purchase all of the securities if they purchase any securities.
We may sell the securities
through agents from time to time. The prospectus or prospectus supplement will name any agent involved in the offer or sale of the securities
and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters,
dealers or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in
the prospectus or prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date
in the future. The contracts will be subject only to those conditions set forth in the prospectus or prospectus supplement, and the prospectus
or prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Agents and underwriters
may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents
and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
We may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus or prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus or prospectus supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of securities, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus or prospectus
supplement (or a post-effective amendment).
Each series of securities will be a new issue
of securities and will have no established trading market other than the common stock which is listed on the Nasdaq Global Market. Any
underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will
not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than the common stock,
may or may not be listed on a national securities exchange.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities offered hereby will be passed upon for us by Alston & Bird LLP, Atlanta, Georgia.
If the validity of the securities offered hereby in connection with offerings made pursuant to this prospectus is being passed upon by
counsel of the underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The consolidated
financial statements of The First Bancshares, Inc. and its subsidiaries as of December 31, 2022 and 2021 and for each of the
years in the two-year period ended December 31, 2022, and the effectiveness of The First Bancshares, Inc.’s internal
controls over financial reporting as of December 31, 2022, have been audited by FORVIS, LLP (formerly BKD, LLP), independent registered
public accounting firm, as set forth in their reporting appearing in our Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The
consolidated financial statements of The First Bancshares, Inc. for the year ended December 31, 2020 have been audited by Crowe
LLP, an independent registered public accounting firm, as set forth in their report appearing in our Annual Report on Form 10-K for the year ended December 31, 2022, and incorporated in this prospectus by reference. Such consolidated financial statements have
been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The
consolidated financial statements of Heritage Southeast Bancorporation, Inc. and its subsidiary as of December 31, 2022 and
2021 and for the years then ended have been audited by Wipfli LLP, independent auditors, as set forth in their report,
which has been incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an itemized statement of the
estimated fees and expenses in connection with the issuance and distribution of the securities registered hereby:
| Securities and Exchange Commission registration fee | |
$ | 33,060 | |
| Listing fees and expenses | |
| * | |
| FINRA filing fee | |
| * | |
| Printing and engraving expenses | |
| * | |
| Trustee, registrar and transfer agent, and depositary fees and expenses | |
| * | |
| Attorneys’ fees and expenses | |
| * | |
| Accounting fees and expenses | |
| * | |
| Miscellaneous expenses | |
| * | |
| | |
| | |
| Total | |
$ | 33,060 | |
* Estimated expenses are not presently known.
Item 15. Indemnification of Directors and Officers
Section 79-4-8.50
through 79-4-8.59 of the MBCA provide the Company with broad powers and authority to indemnify its directors and officers and to purchase
and maintain insurance for such purposes and mandate the indemnification of the Company’s directors under certain circumstances.
The Company’s Bylaws also provide it with the power and authority, to the fullest extent legally permissible under the MBCA, to
indemnify its directors and officers, persons serving at the request of the Company or for its benefit as directors or officers of another
corporation, and persons serving as the Company’s representatives or agents in certain circumstances.
Under its Bylaws, the
Company shall indemnify any person who becomes subject to a lawsuit or proceeding by reason of service as a director of the Company or
any other corporation which the person served as a director at the request of the Company. Except as noted in the next paragraph, such
persons are entitled to be indemnified against judgments, penalties, fines, settlements, and reasonable expenses actually incurred in
connection with the proceeding, provided the indemnified person acted in a manner he believed in good faith to be in or not opposed to
the best interests of the Company, and in the case of any criminal proceeding, had no reasonable cause to believe such conduct was unlawful.
To the extent the Company
has funds reasonably available to be used for this purpose, indemnified persons are entitled to have the Company advance expenses incurred
prior to final disposition of the proceeding, upon delivery of (1) a written affirmation by such person of his good faith belief
that the standard of conduct necessary for indemnification has been met, and (2) a written undertaking to repay the amounts advanced
if it is ultimately determined that the standard of conduct has not been met. The board of directors shall then make a determination
that the facts then known would not preclude indemnification under the MBCA. Pursuant to such authority and the provisions of the Company’s
Bylaws, the Company has purchased insurance against certain liabilities that may be incurred by it and its officers and directors.
Under the Bylaws, indemnification
may not be authorized if it is established that the person appropriated, in violation of his or her duties, any business opportunity
of the Company, engaged in acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
approved dividends or other distributions in violation of the MBCA, or engaged in any transaction in which the director derived an improper
personal benefit.
In addition to the Bylaws
of the Company, the MBCA requires that a corporation indemnify a director who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which he or she was a party because he or she is or was a director of the corporation against reasonable
expenses incurred by him or her in connection with the proceeding. The MBCA also provides that, upon application of a director, a court
may order indemnification if it determines that the director is entitled to such indemnification under the applicable standard of the
MBCA.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the Company
pursuant to the Articles or Bylaws, or otherwise, the Company 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.
Item 16. Exhibits
See the Exhibit Index attached hereto, which is incorporated
into this registration statement by reference.
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 of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) (§230.424(b) of this chapter) 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; |
| (iii) | To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement; |
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section 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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
| (2) | That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser: |
| (i) | Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) (§ 230.424(b)(3) of
this chapter) 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) (§
230.424(b)(2), (b)(5), or (b)(7) of this chapter) 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) (§ 230.415(a)(1)(i), (vii), or (x) of this chapter) for the
purpose of providing the information required by section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date
of the first contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424 (§ 230.424 of
this chapter); |
| (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
of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934, as amended) 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 in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act. |
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
| Exhibit No. |
|
Exhibit |
| |
|
|
| 1.1 |
|
Form of Underwriting Agreement.* |
| |
|
|
| 2.1 |
|
Agreement and Plan of Merger, dated July 27, 2022, by and between The First Bancshares, Inc. and Heritage Southeast Bancorporation, Inc. (incorporated herein by reference to Exhibit 2.1 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on August 1, 2022). |
| |
|
|
| 4.1 |
|
Amended and Restated Articles of Incorporation of The First Bancshares, Inc. (incorporated herein by reference to Exhibit 3.1 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on July 29, 2016). |
| |
|
|
| 4.2 |
|
Amendment
to the Amended and Restated Articles of Incorporation of The First Bancshares, Inc. (incorporated herein by reference to
Exhibit 3.2 to The First Bancshares, Inc.’s Quarterly Report on
Form 10-Q filed on August 9, 2018). |
| 4.4 |
|
Amended and Restated Bylaws of The First Bancshares, Inc. (incorporated herein by reference to Exhibit 3.2 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on March 18, 2016). |
| |
|
|
| 4.5 |
|
Amendment No. 1 to the Amended and Restated Bylaws of The First Bancshares, Inc. (incorporated herein by reference to Exhibit 3.4 to The First Bancshares, Inc.’s Quarterly Report on Form 10-Q filed on May 11, 2020). |
| |
|
|
| 4.6 |
|
Form of Certificate of Common Stock (incorporated herein by reference to Exhibit 4.3 to The First Bancshares, Inc.’s Registration Statement No. 333-220491 on Form S-3 filed on September 15, 2017). |
| |
|
|
| 4.7 |
|
Form of Global Subordinated Note for The First Bancshares, Inc. 5.875% Fixed-to-Floating Rate Subordinated Notes Due 2028 (incorporated herein by reference to Exhibit 4.1 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on May 1, 2018). |
| |
|
|
| 4.8 |
|
Form of Global Subordinated Note for The First Bancshares, Inc. 6.4% Fixed-to-Floating Rate Subordinated Notes Due 2023 (incorporated herein by reference to Exhibit 4.2 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on May 1, 2018). |
| |
|
|
| 4.9 |
|
Indenture by and between The First Bancshares, Inc. and U.S. Bank National Association, dated September 25, 2020 (incorporated herein by reference to Exhibit 4.1 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on September 25, 2020). |
| |
|
|
| 4.10 |
|
Form of Global Subordinated Note for The First Bancshares, Inc. 4.25% Fixed-to-Floating Rate Subordinated Notes Due 2030 (incorporated herein by reference to Exhibit 4.2 to The First Bancshares, Inc.’s Current Report on Form 8-K filed on September 25, 2020). |
| |
|
|
| 4.11 |
|
Description of Securities (incorporated herein by reference to Exhibit 4.6 to The First Bancshares, Inc.’s Annual Report on Form 10-K filed on March 1, 2023) |
| |
|
|
| 4.12 |
|
Form of Articles of Amendment Establishing a Series of Preferred Stock.* |
| |
|
|
| 4.13 |
|
Specimen Preferred Stock Certificate.* |
| |
|
|
| 4.14 |
|
Form of Senior Indenture.*** |
| |
|
|
| 4.15 |
|
Form of Senior Debt Security.* |
| * | To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein. |
| ** | To be filed separately pursuant to Section 305(b)(2) of
the Trust Indenture Act of 1939, if applicable. |
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 Hattiesburg, State of Mississippi, on August 22, 2023.
| |
THE FIRST BANCSHARES, INC. |
| |
|
| |
By: |
/s/ M. Ray (Hoppy) Cole, Jr. |
| |
|
Name: M. Ray (Hoppy) Cole, Jr. |
| |
|
Title: President and Chief Executive Officer |
| |
|
(Principal Executive Officer) |
POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints M. Ray (Hoppy) Cole, Jr.
and Donna T. (Dee Dee) Lowery, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective
and post-effective amendments) to this Registration Statement and to sign any registration statement (and any post-effective amendments
thereto) effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent 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 to all intents and purposes as he might or could do in person, hereby ratifying and confirming that said attorney-in-fact,
agent or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ M. Ray (Hoppy) Cole, Jr. |
|
Chairman of the Board and Director, |
|
August 22, 2023 |
| M. Ray (Hoppy) Cole, Jr. |
|
President and Chief Executive Officer |
|
|
| |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Donna T. (Dee Dee) Lowery |
|
Executive Vice President and Chief |
|
August 22, 2023 |
| Donna T. (Dee Dee) Lowery |
|
Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Rodney D. Bennett |
|
Director |
|
August 22, 2023 |
| Rodney D. Bennett |
|
|
|
|
| |
|
|
|
|
| /s/ David W. Bomboy |
|
Director |
|
August 22, 2023 |
| David W. Bomboy |
|
|
|
|
| |
|
|
|
|
| /s/ E. Ricky Gibson |
|
Director |
|
August 22, 2023 |
| E. Ricky Gibson |
|
|
|
|
| /s/ Jonathan A. Levy |
|
Director |
|
August 22, 2023 |
| /s/ Charles R. Lightsey |
|
Director |
|
August 22, 2023 |
| Charles R. Lightsey |
|
|
|
|
| |
|
|
|
|
| /s/ Fred A. McMurry |
|
Director |
|
August 22, 2023 |
| Fred A. McMurry |
|
|
|
|
| |
|
|
|
|
| /s/ Thomas E. Mitchell |
|
Director |
|
August 22, 2023 |
| Thomas E. Mitchell |
|
|
|
|
| |
|
|
|
|
| /s/ Renee Moore |
|
Director |
|
August 22, 2023 |
| Renee Moore |
|
|
|
|
| |
|
|
|
|
| /s/ Ted E. Parker |
|
Director |
|
August 22, 2023 |
| Ted E. Parker |
|
|
|
|
| |
|
|
|
|
| /s/ J. Douglas Seidenburg |
|
Director |
|
August 22, 2023 |
| J. Douglas Seidenburg |
|
|
|
|
| |
|
|
|
|
| /s/ Andrew D. Stetelman |
|
Director |
|
August 22, 2023 |
| Andrew D. Stetelman |
|
|
|
|
Exhibit 4.14
THE FIRST BANCSHARES, INC.
SENIOR DEBT INDENTURE
DATED AS OF ,
20
WILMINGTON TRUST, NATIONAL ASSOCIATION, AS
TRUSTEE
TABLE OF CONTENTS
Page Number
| Article I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1 |
Definitions |
1 |
| Section 1.2 |
Other Definitions |
4 |
| Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
4 |
| Section 1.4 |
Rules of Construction |
5 |
| Article II THE SECURITIES |
5 |
| Section 2.1 |
Issuable in Series |
5 |
| Section 2.2 |
Establishment of Terms of Series of Securities |
5 |
| Section 2.3 |
Execution and Authentication. |
7 |
| Section 2.4 |
Registrar and Paying Agent |
8 |
| Section 2.5 |
Paying Agent to Hold Money in Trust |
8 |
| Section 2.6 |
Securityholder Lists |
9 |
| Section 2.7 |
Transfer and Exchange |
9 |
| Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
9 |
| Section 2.9 |
Outstanding Securities |
10 |
| Section 2.10 |
Treasury Securities |
10 |
| Section 2.11 |
Temporary Securities |
10 |
| Section 2.12 |
Cancellation |
10 |
| Section 2.13 |
Defaulted Interest |
11 |
| Section 2.14 |
Global Securities |
11 |
| Section 2.15 |
CUSIP Numbers |
12 |
| Article III REDEMPTION |
12 |
| Section 3.1 |
Notice to Trustee |
12 |
| Section 3.2 |
Selection of Securities to be Redeemed |
12 |
| Section 3.3 |
Notice of Redemption |
13 |
| Section 3.4 |
Effect of Notice of Redemption |
14 |
| Section 3.5 |
Deposit of Redemption Price |
14 |
| Section 3.6 |
Securities Redeemed in Part |
14 |
| Article IV COVENANTS |
14 |
| Section 4.1 |
Payment of Principal and Interest |
14 |
| Section 4.2 |
SEC Reports |
14 |
| Section 4.3 |
Compliance Certificate |
14 |
| Section 4.4 |
Stay, Extension and Usury Laws |
15 |
| Section 4.5 |
Corporate Existence |
15 |
| Section 4.6 |
Taxes |
15 |
| Article V SUCCESSORS |
15 |
| Section 5.1 |
When Company May Merge, Etc. |
15 |
| Section 5.2 |
Successor Corporation Substituted |
15 |
| Article VI DEFAULTS AND REMEDIES |
16 |
| Section 6.1 |
Events of Default |
16 |
| Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
17 |
| Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
17 |
| Section 6.4 |
Trustee may File Proofs of Claim |
18 |
| Section 6.5 |
Trustee may Enforce Claims Without Possession of Securities |
18 |
| Section 6.6 |
Application of Money Collected |
19 |
| Section 6.7 |
Limitation on Suits |
19 |
| Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
19 |
| Section 6.9 |
Restoration of Rights and Remedies |
20 |
| Section 6.10 |
Rights and Remedies Cumulative |
20 |
| Section 6.11 |
Delay or Omission Not Waiver |
20 |
| Section 6.12 |
Control by Holders |
20 |
| Section 6.13 |
Waiver of Past Defaults |
20 |
| Section 6.14 |
Undertaking for Costs |
21 |
| Article VII TRUSTEE |
21 |
| Section 7.1 |
Duties of Trustee |
21 |
| Section 7.2 |
Rights of Trustee |
22 |
| Section 7.3 |
Individual Rights of Trustee |
24 |
| Section 7.4 |
Trustee’s Disclaimer |
24 |
| Section 7.5 |
Notice of Defaults |
24 |
| Section 7.6 |
Reports by Trustee to Holders |
24 |
| Section 7.7 |
Compensation and Indemnity |
25 |
| Section 7.8 |
Replacement of Trustee |
25 |
| Section 7.9 |
Successor Trustee by Merger, Etc. |
26 |
| Section 7.10 |
Eligibility; Disqualification |
26 |
| Section 7.11 |
Referential Collection of Claims Against Company |
26 |
| Article VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
27 |
| Section 8.1 |
Satisfaction and Discharge of Indenture |
27 |
| Section 8.2 |
Application of Trust Funds; Indemnification |
27 |
| Section 8.3 |
Legal Defeasance of Securities of any Series |
28 |
| Section 8.4 |
Covenant Defeasance |
29 |
| Section 8.5 |
Repayment to Company |
30 |
| Article IX AMENDMENTS AND WAIVERS |
30 |
| Section 9.1 |
Without Consent of Holders |
30 |
| Section 9.2 |
With Consent of Holders |
31 |
| Section 9.3 |
Limitations |
32 |
| Section 9.4 |
Compliance with Trust Indenture Act |
32 |
| Section 9.5 |
Revocation and Effect of Consents |
32 |
| Section 9.6 |
Notation on or Exchange of Securities |
33 |
| Section 9.7 |
Trustee Protected |
33 |
| Article X MISCELLANEOUS |
33 |
| Section 10.1 |
Trust Indenture Act Controls |
33 |
| Section 10.2 |
Notices |
33 |
| Section 10.3 |
Communication by Holders with Other Holders |
34 |
| Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
34 |
| Section 10.5 |
Statements Required in Certificate or Opinion |
34 |
| Section 10.6 |
Rules by Trustee and Agents |
34 |
| Section 10.7 |
Legal Holidays |
34 |
| Section 10.8 |
No Recourse Against Others |
35 |
| Section 10.9 |
Counterparts |
35 |
| Section 10.10 |
Governing Laws; Waiver of Jury Trial; Jurisdiction |
35 |
| Section 10.11 |
No Adverse Interpretation of Other Agreements |
35 |
| Section 10.12 |
Successors |
35 |
| Section 10.13 |
Severability |
35 |
| Section 10.14 |
Table of Contents, Headings, Etc |
35 |
| Article XI SINKING FUNDS |
36 |
| Section 11.1 |
Applicability of Article |
36 |
| Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
36 |
| Section 11.3 |
Redemption of Securities for Sinking Fund |
36 |
CROSS REFERENCE TABLE
| Trust Indenture |
|
Indenture |
| Act Section |
|
Section |
| Section 310 |
(a)(1) |
7.10 |
| |
(a)(2) |
7.10 |
| |
(a)(3) |
N/A |
| |
(a)(4) |
N/A |
| |
(a)(5) |
7.10 |
| |
(b) |
7.10 |
| Section 311 |
(a) |
7.11 |
| |
(b) |
7.11 |
| |
(c) |
N/A |
| Section 312 |
(a) |
2.6 |
| |
(b) |
10.3 |
| |
(c) |
10.3 |
| Section 313 |
(a) |
7.6 |
| |
(b)(1) |
7.6 |
| |
(b)(2) |
7.6 |
| |
(c)(1) |
7.6 |
| |
(d) |
7.6 |
| Section 314 |
(a) |
4.2,
10.5 |
| |
(b) |
N/A |
| |
(c)(1) |
10.4 |
| |
(c)(2) |
10.4 |
| |
(c)(3) |
N/A |
| |
(d) |
N/A |
| |
(e) |
10.5 |
| |
(f) |
N/A |
| Section 315 |
(a) |
7.1 |
| |
(b) |
7.5 |
| |
(c) |
7.1 |
| |
(d) |
7.1 |
| |
(e) |
6.14 |
| Section 316 |
(a) |
2.10 |
| |
(a)(1)(A) |
6.12 |
| |
(a)(1)(B) |
6.13 |
| |
(b) |
6.8 |
| Section 317 |
(a)(1) |
6.3 |
| |
(a)(2) |
6.4 |
| |
(b) |
2.5 |
| Section 318 |
(a) |
10.1 |
* This Cross Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.
This Senior
Debt INDENTURE, dated as of
, 20 is made by and between THE FIRST BANCSHARES, INC., a Mississippi corporation (the “Company”), and
WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as trustee (the “Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings,
the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether
through the ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Service Agent.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday, or any day which is a federal holiday or any day on which banking institutions in the City of New
York, New York, any Place of Payment, or the city in which the Corporate Trust Office is located, are authorized or required by law,
regulation or executive order to close or remain closed.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at Rodney Square North, 1100 North Market Street, Wilmington, DE 19890,
Attention: The First Bancshares, Inc. Administrator, or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the Company).
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the
Securities of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the Stated Maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which
are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered.
“Indenture”
means this Senior Debt Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,”
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, or otherwise.
“Officer”
means the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Opinion of Counsel”
means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or outside counsel designated by the Company, rendered, if applicable, in accordance with Section 314(c) of the
Trust Indenture Act.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Securities of or within any Series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as contemplated by Section 2.1.
“principal”
or “principal amount” of a Security means the principal amount of the Security plus, when appropriate, the premium,
if any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject,
in each case, who has direct responsibility for the administration of this Indenture.
“SEC”
means the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power
of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the
extent required by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who
is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect
to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government
Obligations” means securities which are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and which in the case of clauses (a) and (b) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
Section 1.2 Other
Definitions.
| Term |
|
Defined in Section |
| “Bankruptcy Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Event of Default” |
|
6.1 |
| “Legal Holiday” |
|
10.7 |
| “mandatory sinking fund payment” |
|
11.1 |
| “optional sinking fund payment” |
|
11.1 |
| “Paying Agent” |
|
2.4 |
| “Registrar” |
|
2.4 |
| “Service Agent” |
|
2.4 |
| “successor person” |
|
5.1 |
Section 1.3 Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference
in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on
the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.
Section 1.4 Rules of
Construction. Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references
to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles,
consistently applied, in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d) “or”
is not exclusive;
(e) words
in the singular include the plural, and in the plural include the singular; and
(f) provisions
apply to successive events and transactions;
Article II
THE SECURITIES
Section 2.1 Issuable
in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or
determined in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption
of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof
pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity
date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect
of any matters; provided that all Series of Securities shall be equally and ratably entitled to the benefits of
this Indenture.
Section 2.2 Establishment
of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established
(as to the Series generally, in the case of Section 2.2(a) and either as to such Securities within the Series or
as to the Series generally, in the case of Sections 2.2(b) through 2.2(q)) by or pursuant to a Board Resolution, and set forth
or determined in the manner provided in a Board Resolution, supplemental indenture or an Officers’ Certificate:
(a) the
title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(c) any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
(d) the
date or dates on which the principal of the Securities of the Series is payable;
(e) the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
(f) the
Place of Payment where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer,
mail or other means;
(g) if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
(h) the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
(j) if
other than minimum denominations of $1,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Securities
of the Series shall be issuable;
(k) the
forms of the Securities of the Series (which shall be in fully registered form) and whether the Securities will be issuable as Global
Securities;
(l) if
other than the entire principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
(m) the
provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the Series;
(n) any
addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(o) any
addition to or change in the covenants set forth in Article IV or V which applies to Securities of the Series;
(p) any
other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to
such Series); and
(q) any
depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein.
All
Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate
referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution
and Authentication; Electronic Signatures.
Two
Officers shall sign the Securities for the Company by manual, facsimile signature or electronic signature. Unless otherwise provided
herein or in any other Securities, the words “execute”, “execution”, “signed”, and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any other Securities or
any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include
electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that,
notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in
any form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by such Trustee.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. Such a signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The
Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the
Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such
Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication
unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The
aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered
pursuant to Section 2.2, except as provided in Section 2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully
protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the
form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers’ Certificate complying with Section 10.4, and (c) an Opinion of
Counsel complying with Section 10.4.
The
Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised
by counsel, determines that such action may not be taken lawfully; or (b) if the issuance of such Securities will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar
and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the Place of Payment specified
with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be
presented or surrendered for payment (the “Paying Agent”), where Securities of such Series may be
surrendered for registration of transfer or exchange (the “Registrar”) and where notices and demands (other than
service of process) to or upon the Company in respect of the Securities of such Series and this Indenture may be served (the
“Service Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their
transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such
required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands (other than any service
of process).
The Company may also from
time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind
such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of
its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities
of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service
Agent” includes any additional service agent.
The Company hereby appoints
the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying
Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the
Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for
the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names
and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at such times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities;
provided that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as Registrar. The Trustee
may destroy any list furnished to it as provided in Section 2.6 upon receipt of a new list so furnished.
Section 2.7 Transfer
and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer
or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make
the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable
upon exchanges pursuant to Section 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the date a notice of redemption of Securities of that Series selected for
redemption is given and ending at the close of business on the day of such notice, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part, or (c) to register the transfer of or exchange Securities of any Series between
a record date and the relevant payment date.
Section 2.8 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or satisfactory indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of written notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company
shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9 Outstanding
Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance
with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security
is held by a protected purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due
and payable on such date of Maturity).
A Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in
any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities of a Series that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.
Section 2.11 Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon receipt of a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee, upon receipt of a Company Order, shall authenticate definitive Securities of the same Series and Stated Maturity
in exchange for temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the
definitive Securities.
Section 2.12 Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Cancelled Securities and coupons
held by the Trustee shall be destroyed by the Trustee in accordance with its customary procedures. The Company by Company Order may direct
the Trustee to deliver a certificate of such destruction to the Company.
Section 2.13 Defaulted
Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus,
to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on
a subsequent special record date. The Company shall fix the special record date and payment date. At least 10 days before the special
record date, the Company shall give to the Trustee and to each Securityholder of the Series a notice that states the special record
date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global
Securities.
(a) Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such
Global Security or Securities.
(b) Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.7 for Securities registered in the names of Holders other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository
for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within 90 days
of such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global
Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security
shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable
for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository.
(c) Legend.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This
Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository
or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository
or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository
to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such a successor Depository.”
(d) Acts
of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.
(e) Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
(f) Consents,
Declaration and Directions. Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person
as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified
in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this Indenture.
Section 2.15 CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such numbers.
Article III
REDEMPTION
Section 3.1 Notice
to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of
Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or
is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the foregoing notice at least 45 days before the redemption date (or such shorter notice as may be acceptable
to the Trustee).
Section 3.2 Selection
of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture
or an Officers’ Certificate, if less than all the Securities of any Series issued on the same day with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the redemption date by the
Trustee, from the Outstanding Securities of such Series issued on such date with the same terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate, and, in the case of Global Securities, the particular Securities to be
redeemed shall be selected in accordance with the procedures of the Depository; provided that such method complies with the rules of
any national securities exchange or quotation system on which the Securities are listed (and the Company shall notify the Trustee of
any such listing), and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities
of that Series or any integral multiple thereof) of the principal amount of Securities of such Series of a denomination larger
than the minimum authorized denomination for Securities of that Series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities
of such Series.
The Trustee shall promptly
notify the Company and the Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of
any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to
be redeemed.
Notwithstanding the foregoing,
if any Security to be redeemed is a Global Security then any partial redemption of that Series of Securities will be made in accordance
with the Depository’s applicable procedures among all Holders of such Series of Securities.
Section 3.3 Notice
of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall give a notice of
redemption in accordance with Section 10.2 to each Holder whose Securities are to be redeemed.
The
notice shall identify the Securities of the Series to be redeemed and shall state:
| (b) | the redemption price and accrued interest,
if any, to the redemption date payable as provided; |
| (c) | the name and address of the Paying Agent; |
| (d) | that Securities of the Series called
for redemption must be surrendered to the Paying Agent to collect the redemption price; |
| (e) | that interest on Securities of the Series called
for redemption ceases to accrue on and after the redemption date; |
| (f) | the CUSIP number, if any; |
| (g) | any conditions precedent that must be
satisfied prior to the redemption; and |
| (h) | any
other information as may be required by the terms of the particular Series or the Securities
of a Series being redeemed. |
At the Company’s request
given at least five Business Days prior to the date such notice is to be given to Holders accompanied by the form of notice of redemption,
the Trustee shall give the notice of redemption to the Holders of the Securities to be redeemed in the Company’s name and at its
expense.
Section 3.4 Effect
of Notice of Redemption. Once notice of redemption is given as provided in Section 3.3, Securities of a Series called for
redemption become due and payable on the redemption date and at the redemption price, subject to, with respect to any redemption that
is conditioned upon the satisfaction of any conditions precedent, (i) the delay of such redemption date until such time as any or
all of such conditions precedent have been satisfied or (ii) the revocation of such redemption if the Company determines that such
conditions precedent will not be satisfied. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price
plus accrued interest to, but excluding, the redemption date; provided that installments of interest whose Stated Maturity is
on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered
at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit
of Redemption Price. On or before 11:00 A.M. New York City time, on the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security
of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
Article IV
COVENANTS
Section 4.1 Payment
of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that
it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2 SEC
Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the Company’s compliance with any
of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).
The Trustee shall have no duty to monitor or confirm, on a continuing basis or otherwise, whether any financial information has been
filed with the SEC or posted on the EDGAR system (or any successor electronic delivery procedure) or any website or whether the Company
has delivered the reports described under this Section 4.2 or otherwise complied with its obligations under this Section 4.2.
Section 4.3 Compliance
Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of
which he may have knowledge).
The Company will, so long
as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.4 Stay,
Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
Section 4.5 Corporate
Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right, license or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.
Section 4.6 Taxes.
The Company shall pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate
proceedings.
Article V
SUCCESSORS
Section 5.1 When
Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially
all of its properties and assets to, any person (a “successor person”), nor shall the Company permit any other person
to consolidate with or merge into it or convey, transfer or lease all or substantially all of its properties and assets to it, in either
case unless:
(a) the
Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this
Indenture; and
(b) immediately
after giving effect to the transaction, and treating any indebtedness that becomes the obligation of the Company or any of its Subsidiaries
as having been incurred at the effective date of such transaction no Default or Event of Default shall have occurred and be continuing.
The Company shall deliver
to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor
Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into
or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture and the Securities with the same effect as if such successor
person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance
or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
Article VI
DEFAULTS AND REMEDIES
Section 6.1 Events
of Default.
“Event
of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless
in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall
not have the benefit of said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to the expiration of such period of 30 days);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series;
(d) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which
the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and other than a covenant or warranty that
has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default or breach
continues uncured or unwaived in accordance with the provisions of this Indenture for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25.0%
in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(e) the
Company pursuant to or within the meaning of any Bankruptcy Law:
i. commences
a voluntary case,
ii. consents
to the entry of an order for relief against it in an involuntary case,
iii. consents
to the appointment of a Custodian of it or for all or substantially all of its property,
iv. makes
a general assignment for the benefit of its creditors, or
v. generally
is unable to pay its debts as the same become due; or
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
i. is
for relief against the Company in an involuntary case,
ii. appoints
a Custodian of the Company or for all or substantially all of its property, or
iii. orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
(g) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate, in accordance with Section 2.2(n).
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration
of Maturity; Rescission and Annulment. Except to the extent provided otherwise in the establishing Board Resolution, supplemental indenture
or Officers’ Certificate for such Series, if an Event of Default with respect to Securities of any Series at the time outstanding
occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or 6.1(f)), then in every such case
the Trustee or the Holders of not less than 25.0% in aggregate principal amount of the outstanding Securities of that Series may
declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount
as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 6.1(e) or 6.1(f) shall occur, the principal amount (or portion thereof) of and accrued
and unpaid interest, if any, on all outstanding Securities shall automatically become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a
declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any,
of Securities of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided
in Section 6.13.
No such rescission shall
affect any subsequent Default or impair any right consequent thereon.
Section 6.3 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
then, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any
overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee
may File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee
may Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application
of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of
all amounts due the Trustee under Section 7.7; and
Second: To the payment of
the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities
for principal and interest, respectively; and
Third:
To the Company.
Section 6.7 Limitation
on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25.0% in principal amount of the outstanding Securities of that Series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity or security has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
Section 6.8 Unconditional
Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security
on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 6.10 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 6.11 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control
by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series; provided that:
(a) the
Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that such direction
shall be in conflict with any rule of law or with this Indenture;
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) the
Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of
the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability or expense for which it is not
adequately indemnified, or is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee does not have
an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 6.13 Waiver
of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may
on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and
its consequences, except a Default (a) in the payment of the principal
of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount
of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default
that resulted from such acceleration) or (b) in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the redemption date).
Article VII
TRUSTEE
Section 7.1 Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(c) the
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee, and
(d) the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’
Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in
the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether
or not they conform to the requirements of this Indenture.
(e) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
i. this
paragraph does not limit the effect of paragraph (b) of this Section.
ii. the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
iii. the
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(f) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section.
(g) The
Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder or Holders pursuant to
this Indenture, unless such Holder or Holders shall have offered and, if requested, provided to the Trustee security or indemnity satisfactory
to the Trustee in its sole and absolute discretion against any costs, losses, liabilities and expenses which might be incurred by it
in compliance with such request or direction.
(h) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(i) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment
of such funds or satisfactory indemnity against such risk is not assured to it.
(j) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are
set forth in paragraphs (b) and (c) of this Section with respect to the Trustee.
(k) The
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights
or powers.
(l) The
Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under
this Indenture.
(m) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
Section 7.2 Rights
of Trustee.
| (a) | The Trustee may rely on and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper person not only as to due execution, validity
and effectiveness, but also as to the truth and accuracy of any information contained therein.
The Trustee need not investigate any fact or matter stated in the document. |
| (b) | Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate, an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance
on such Officers’ Certificate and/or Opinion of Counsel. |
| (c) | The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent appointed with due
care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any Depository. |
| (d) | The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be authorized or within
its rights or powers. |
| (e) | The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities unless such Holders shall have offered and,
if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction. |
| (f) | The Trustee may consult with counsel of
its selection and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder without negligence and in good faith and in reliance thereon. |
| (g) | The Trustee may conclusively rely upon
and shall not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit. |
| (h) | The Trustee shall not be
deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities generally or the Securities of a particular Series and this
Indenture. |
| (i) | Delivery
of reports, information and documents (including, without limitation, reports contemplated
in this Section) to the Trustee is for information purposes only, and the Trustee’s
receipts thereof shall not constitute actual or constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s
compliance with covenants under this Indenture, Securities, and guarantees (if any), as to
which the Trustee is entitled to rely exclusively on Officers’ Certificates. |
| (j) | The
Trustee shall have no responsibility for monitoring the Company’s compliance with any
of its covenants under this Indenture. |
| (k) | The
Trustee shall not be responsible or liable for punitive, special, indirect, incidental, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss
of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of actions. |
| (l) | Any
permissive right of the Trustee to take or refrain from taking actions enumerated in this
Indenture shall not be construed as a duty. |
| (m) | The
Trustee shall not be responsible or liable for any failure or delay in the performance of
its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, any act or provision
of any present or future law or regulation or governmental authority; acts of God; earthquakes;
fires; floods; terrorism; wars; civil or military disturbances; sabotage; epidemics; pandemics;
quarantine restrictions, recognized public emergencies, riots; interruptions; loss or malfunction
of utilities, computer (hardware or software) or communication services; accidents; labor
disputes; acts of civil or military authorities or governmental action or the unavailability
of the Federal Reserve Bank wire or telex or other wire or communication facility; it being
understood that the Trustee shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the
circumstances. |
| (n) | The
Trustee shall not be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of any Series, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series. |
Section 7.3 Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise
deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s
Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in
the Securities other than its authentication. In accepting the trust hereby created, the Trustee acts solely as Trustee under this Indenture
and not in its individual capacity and all persons, including without limitation the Holders of Securities and the Company having any
claim against the Trustee arising from this Indenture shall look only to the funds and accounts held by the Trustee hereunder for payment
except as otherwise provided herein.
Section 7.5 Notice
of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section 7.6 Reports
by Trustee to Holders. Within 60 days after each anniversary of this Indenture, following the date of the initial issuance of Securities
under this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar, a brief report dated as of such anniversary date of this Indenture, in accordance with, and to the extent required
under, TIA Section 313.
A copy of each report at
the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the
Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed
on any stock exchange.
Section 7.7 Compensation
and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services hereunder as the Company and
the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred by it in connection with the performance of its duties under this Indenture. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel.
The
Company shall indemnify each of the Trustee and any predecessor Trustee for and hold it harmless, (including the cost of defending itself)
against any and all loss, liability, claim, suit or expense (including attorneys’ fees and expenses, and including other than taxes
based upon, measured by or determined by the income of the Trustee), including without limitation the costs and expenses of defending
itself against any third-party claim (whether asserted by any Holder or any other person), without negligence or willful misconduct,
as finally determined by a court of competent jurisdiction, arising out of or in connection with its acceptance or administration of
the trust or trusts hereunder, including the performance of its duties or the exercise of its powers hereunder and including the enforcement
of this Indenture (including, without limitation, this Section 7.7). With respect to any such claim other than a claim brought by
the Company, (i) the Trustee shall notify the Company promptly of any claim for which it may seek indemnity, (ii) the Company
may at its option defend the claim, in which event the Trustee shall cooperate in the defense and the Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel and (iii) the Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(e) or 6.1(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the resignation or removal of the Trustee and the termination of this Indenture.
Section 7.8 Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the outstanding Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company, in writing. The Company may remove the Trustee with respect to Securities
of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the outstanding Securities of
the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor
Trustee shall give a notice of its succession to each Securityholder of each such Series in accordance with Section 10.2. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor
Trustee by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation or other entity succeeding to or acquiring all or substantially all the corporate trust business of the Trustee
(including the administration of the trust created by this Indenture), shall be the successor of the Trustee hereunder, provided such
corporation or other entity shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to, or by succession to or acquisition of all or
substantially all of the corporate trust business of, such successor Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities..
Section 7.10 Eligibility;
Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1), 310(a)(2) and
310(a)(5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Referential
Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Article VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction
and Discharge of Indenture. This Indenture shall, upon Company Order, cease to be of further effect (except as hereinafter provided
in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) either:
i. all
Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been
replaced or paid) have been delivered to the Trustee for cancellation; or
ii. all
such Securities not theretofore delivered to the Trustee for cancellation
(1) have
become due and payable, or
(2) will
become due and payable at their Stated Maturity within one year, or
(3) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company; or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of clauses (1), (2) and (3) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of
paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such
deposit) or to the Stated Maturity or redemption date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall
survive.
Section 8.2 Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company
acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments
as contemplated by Section 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 8.3 or 8.4 or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or money held by it
as provided in Section 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such U.S. Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture.
Section 8.3 Legal
Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2(p), to
be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of any Series on the 90th day after the date of the deposit referred to in subparagraph (c) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (c) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and
(c) the
rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been
satisfied:
| i. | the Company shall have deposited or caused
to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee
as trust funds in trust for the purpose of making the following payments, specifically pledged
as security for and dedicated solely to the benefit of the Holders of such Securities, cash
in Dollars and/or U.S. Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than one day before
the due date of any payment of money, an amount in cash, sufficient, in the opinion of a
regionally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, if any, on and any mandatory sinking fund payments in respect of all the Securities
of such Series on the dates such installments of interest or principal and such sinking
fund payments are due; |
| ii. | such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; |
| iii. | no Default or Event of Default with respect
to the Securities of such Series shall have occurred and be continuing on the date of
such deposit or during the period ending on the 90th day after such date; |
| iv. | the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (A) the
Company has received from, or there has been published by, the Internal Revenue Service a
ruling, or (B) since the date of execution of this Indenture, there has been a change
in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will
not recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amounts and
in the same manner and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred; |
| v. | the
Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of the Securities
of such Series over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and |
| vi. | the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the legal defeasance contemplated by this Section have
been complied with. |
Section 8.4 Covenant
Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2(p) to be inapplicable to Securities
of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit
to comply with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3,
4.4, 4.6, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board
Resolution or an Officers’ Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate
delivered pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series; provided that the following conditions shall have been satisfied:
(a) With
reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment
of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a regionally recognized firm of independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund
payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund
payments are due;
(b) Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 90th day after such date;
(d) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will
not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(e) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5 Repayment
to Company. The Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal and interest that remains unclaimed for six months. After that, Securityholders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another person.
Article IX
AMENDMENTS AND WAIVERS
Section 9.1 Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without
the consent of any Securityholder by indentures supplemental hereto:
| (a) | to cure any ambiguity, defect or inconsistency; |
| (b) | to comply with Article V; |
| (c) | to
evidence the succession of another corporation to the Company, or successive successions,
pursuant to Article V, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company herein and in the Securities; |
| (d) | to
add to the covenants of the Company such further covenants, restrictions, conditions or provisions
as its Board of Directors shall consider to be for the protection of the Holders of Securities,
and to make the occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein
set forth, with such period of grace, if any, and subject to such conditions as such supplemental
indenture may provide; |
| (e) | to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary
to effect the qualification of this Indenture under the TIA, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions as may be expressly
permitted by the TIA, excluding however, the provisions referred to in Section 316(a)(2) of
the TIA or any corresponding provision in any similar federal statute hereafter enacted; |
| (f) | to
add any additional Events of Default (and if such Events of Default are to be for the benefit
of less than all Series of Securities, stating that such are expressly being included
solely for the benefit of such Series); |
| (g) | to
modify, eliminate or add to any of the provisions of this Indenture; provided that
any such change or elimination (i) shall become effective only when there is no Security
of any Series Outstanding and created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not apply to any Security
outstanding; |
| (h) | to provide for uncertificated Securities
in addition to or in place of certificated Securities; |
| (i) | to make any change that does not adversely
affect the rights of any Securityholder; |
| (j) | to provide for the issuance of and establish
the form and terms and conditions of Securities of any Series as permitted by this Indenture; |
| (k) | to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; or |
| (l) | to comply with requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the TIA. |
Section 9.2 With
Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of
at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of
at least a majority in principal amount of the outstanding Securities of any Series by written notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this Section becomes effective, the Company shall give to the Holders of Securities affected thereby a notice briefly describing
the supplemental indenture or waiver in accordance with Section 10.2. Any failure by the Company to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
Without the consent of each Securityholder affected, an amendment or waiver may not:
| (a) | reduce the amount of Securities whose
Holders must consent to an amendment, supplement or waiver; |
| (b) | reduce the rate of or extend the time
for payment of interest (including default interest) on any Security; |
| (c) | reduce the principal or change the Stated
Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation; |
| (d) | reduce the principal amount of Discount
Securities payable upon acceleration of the maturity thereof; |
| (e) | waive a Default or Event of Default in
the payment of the principal of or interest, if any, on any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a majority
in principal amount of the outstanding Securities of such Series and a waiver of the
payment default that resulted from such acceleration); |
| (f) | make the principal of or interest, if
any, on any Security payable in any currency other than that stated in the Security; |
| (g) | make any change in Section 6.8, 6.13,
or 9.3 (this sentence); or |
| (h) | waive a redemption payment with respect
to any Security. |
Section 9.4 Compliance
with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation
and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice
of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
Section 9.6 Notation
on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall, upon receipt of a Company
Order, authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee
Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent
have been satisfied, the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental
indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The
Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects
it.
Article X
MISCELLANEOUS
Section 10.1 Trust
Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required
or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if
in writing and delivered in person or mailed by first-class mail:
if to the Company:
The First Bancshares, Inc.
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
Attention: Dee Dee Lowery, Executive
Vice President and Chief Financial Officer
Telephone: (601) 268-8998
if to the Trustee:
Wilmington Trust, National
Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: The First Bancshares, Inc.
Administrator
Telephone: (302) 636-6398
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication
is given in the manner provided in this Section 10.2, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
If
the Company gives a notice or communication to Securityholders, it shall give a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice
of any event or any other communication (including any notice of redemption or repurchase) to a Securityholder of a Security (whether
by mail or otherwise), such notice shall be sufficiently given in respect of Global Securities if given to Depository (or its designee)
pursuant to the applicable procedures from Depository or its designee, including by electronic mail in accordance with accepted practices
at Depository.
Section 10.3 Communication
by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that
Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
| (a) | an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and |
| (b) | an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with. |
Section 10.5 Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
| (a) | a statement that the person making such
certificate or opinion has read such covenant or condition; |
| (b) | a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; |
| (c) | a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with;
and |
| (d) | a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with. |
Section 10.6 Rules by
Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of one or more Series.
Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal
Holidays. Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular
Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a Place of
Payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 10.8 No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange
of copies of this Indenture and of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”)
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of
the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g.,
“.pdf” or “.tif”) shall be deemed to be their original signatures for all purposes.
Section 10.10 Governing
Laws; Waiver of Jury Trial; Jurisdiction. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED WITH THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING AMONG THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY OR THEREBY.
The parties hereby (i) irrevocably
submit to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the City of New York, (ii) waive
any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts
are an inconvenient forum or do not have jurisdiction over any party.
Section 10.11 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 10.13 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table
of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Article XI
SINKING FUNDS
Section 11.1 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a
Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The
minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a
“mandatory sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein
referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied
to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.
Section 11.2 Satisfaction
of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms
of such Securities (a) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other
than any of such Securities previously called for mandatory sinking fund redemption) and (b) apply as credit Securities of such
Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the
election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through
the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’
Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities
for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery
or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to
be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such
Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment; provided, however, that the Trustee
or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so
being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased
by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3 Redemption
of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture
or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that
Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking
fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise
indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities)
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
[Signature page follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
THE FIRST BANCSHARES, INC. |
| |
|
|
| |
By: |
|
| |
|
Name: |
| |
|
Title: |
| |
|
| |
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Title: |
Exhibit 4.16
THE
FIRST BANCSHARES, INC.
SUBORDINATED
INDENTURE
DATED
AS OF , 20
Wilmington
Trust, National Association, AS TRUSTEE
TABLE OF CONTENTS
Page Number
| Article I |
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1 |
Definitions |
1 |
| Section 1.2 |
Other Definitions |
5 |
| Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.4 |
Rules of Construction |
6 |
| |
|
|
| Article II |
THE SECURITIES |
6 |
| Section 2.1 |
Issuable in Series |
6 |
| Section 2.2 |
Establishment of Terms of Series of Securities |
6 |
| Section 2.3 |
Execution and Authentication |
8 |
| Section 2.4 |
Registrar and Paying Agent |
9 |
| Section 2.5 |
Paying Agent to Hold Money in Trust |
9 |
| Section 2.6 |
Securityholder Lists |
10 |
| Section 2.7 |
Transfer and Exchange |
10 |
| Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
10 |
| Section 2.9 |
Outstanding Securities |
11 |
| Section 2.10 |
Treasury Securities |
11 |
| Section 2.11 |
Temporary Securities |
11 |
| Section 2.12 |
Cancellation |
11 |
| Section 2.13 |
Defaulted Interest |
12 |
| Section 2.14 |
Global Securities |
12 |
| Section 2.15 |
CUSIP Numbers |
13 |
| |
|
|
| Article III |
REDEMPTION |
13 |
| Section 3.1 |
Notice to Trustee |
13 |
| Section 3.2 |
Selection of Securities to be Redeemed |
13 |
| Section 3.3 |
Notice of Redemption |
14 |
| Section 3.4 |
Effect of Notice of Redemption |
15 |
| Section 3.5 |
Deposit of Redemption Price |
15 |
| Section 3.6 |
Securities Redeemed in Part |
15 |
| |
|
|
| Article IV |
COVENANTS |
15 |
| Section 4.1 |
Payment of Principal and Interest |
15 |
| Section 4.2 |
SEC Reports |
15 |
| Section 4.3 |
Compliance Certificate |
15 |
| Section 4.4 |
Stay, Extension and Usury Laws |
16 |
| Section 4.5 |
Corporate Existence |
16 |
| Section 4.6 |
Taxes |
16 |
| |
|
|
| Article V |
SUCCESSORS |
16 |
| Section 5.1 |
When Company May Merge, Etc. |
16 |
| Section 5.2 |
Successor Corporation Substituted |
17 |
| |
|
|
| Article VI |
DEFAULTS AND REMEDIES |
17 |
| Section 6.1 |
Events of Default |
17 |
| Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
18 |
| Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
18 |
| Section 6.4 |
Trustee may File Proofs of Claim |
19 |
| Section 6.5 |
Trustee may Enforce Claims Without Possession of Securities |
19 |
| Section 6.6 |
Application of Money Collected |
20 |
| Section 6.7 |
Limitation on Suits |
20 |
| Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
20 |
| Section 6.9 |
Restoration of Rights and Remedies |
21 |
| Section 6.10 |
Rights and Remedies Cumulative |
21 |
| Section 6.11 |
Delay or Omission Not Waiver |
21 |
| Section 6.12 |
Control by Holders |
21 |
| Section 6.13 |
Waiver of Past Defaults |
21 |
| Section 6.14 |
Undertaking for Costs |
22 |
| |
|
|
| Article VII |
TRUSTEE |
22 |
| Section 7.1 |
Duties of Trustee |
22 |
| Section 7.2 |
Rights of Trustee |
23 |
| Section 7.3 |
Individual Rights of Trustee |
25 |
| Section 7.4 |
Trustee’s Disclaimer |
25 |
| Section 7.5 |
Notice of Defaults |
25 |
| Section 7.6 |
Reports by Trustee to Holders |
25 |
| Section 7.7 |
Compensation and Indemnity |
26 |
| Section 7.8 |
Replacement of Trustee |
26 |
| Section 7.9 |
Successor Trustee by Merger, Etc. |
27 |
| Section 7.10 |
Eligibility; Disqualification |
27 |
| Section 7.11 |
Referential Collection of Claims Against Company |
28 |
| |
|
|
| Article VIII |
SATISFACTION AND DISCHARGE; DEFEASANCE |
28 |
| Section 8.1 |
Satisfaction and Discharge of Indenture |
28 |
| Section 8.2 |
Application of Trust Funds; Indemnification |
29 |
| Section 8.3 |
Legal Defeasance of Securities of any Series |
29 |
| Section 8.4 |
Covenant Defeasance |
31 |
| Section 8.5 |
Repayment to Company |
31 |
| |
|
|
| Article IX |
AMENDMENTS AND WAIVERS |
31 |
| Section 9.1 |
Without Consent of Holders |
31 |
| Section 9.2 |
With Consent of Holders |
32 |
| Section 9.3 |
Limitations |
33 |
| Section 9.4 |
Compliance with Trust Indenture Act |
33 |
| Section 9.5 |
Revocation and Effect of Consents |
33 |
| Section 9.6 |
Notation on or Exchange of Securities |
34 |
| Section 9.7 |
Trustee Protected |
34 |
| |
|
|
| Article X |
MISCELLANEOUS |
34 |
| Section 10.1 |
Trust Indenture Act Controls |
34 |
| Section 10.2 |
Notices |
34 |
| Section 10.3 |
Communication by Holders with Other Holders |
35 |
| Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
35 |
| Section 10.5 |
Statements Required in Certificate or Opinion |
35 |
| Section 10.6 |
Rules by Trustee and Agents |
36 |
| Section 10.7 |
Legal Holidays |
36 |
| Section 10.8 |
No Recourse Against Others |
36 |
| Section 10.9 |
Counterparts |
36 |
| Section 10.10 |
Governing Laws; Waiver of Jury Trial; Jurisdiction |
36 |
| Section 10.11 |
No Adverse Interpretation of Other Agreements |
36 |
| Section 10.12 |
Successors |
36 |
| Section 10.13 |
Severability |
37 |
| Section 10.14 |
Table of Contents, Headings, Etc. |
37 |
| |
|
|
| Article XI |
SINKING FUNDS |
37 |
| Section 11.1 |
Applicability of Article |
37 |
| Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
37 |
| Section 11.3 |
Redemption of Securities for Sinking Fund |
37 |
| |
|
|
| Article XII |
SUBORDINATION OF SECURITIES |
38 |
| Section 12.1 |
Agreement of Subordination |
38 |
| Section 12.2 |
Payments to Holders |
38 |
| Section 12.3 |
Subrogation of Securities |
40 |
| Section 12.4 |
Authorization to Effect Subordination |
41 |
| Section 12.5 |
Notice to Trustee |
41 |
| Section 12.6 |
Trustee’s Relation to Senior Indebtedness |
42 |
| Section 12.7 |
No Impairment of Subordination |
42 |
| Section 12.8 |
Article Applicable to Paying Agents |
42 |
| Section 12.9 |
Senior Indebtedness Entitled to Rely |
43 |
CROSS REFERENCE TABLE
| Trust Indenture |
|
Indenture |
| Act Section |
|
Section |
| Section 310 |
(a)(1) |
7.10 |
| |
(a)(2) |
7.10 |
| |
(a)(3) |
N/A |
| |
(a)(4) |
N/A |
| |
(a)(5) |
7.10 |
| |
(b) |
7.10 |
| Section 311 |
(a) |
7.11 |
| |
(b) |
7.11 |
| |
(c) |
N/A |
| Section 312 |
(a) |
2.6 |
| |
(b) |
10.3 |
| |
(c) |
10.3 |
| Section 313 |
(a) |
7.6 |
| |
(b)(1) |
7.6 |
| |
(b)(2) |
7.6 |
| |
(c)(1) |
7.6 |
| |
(d) |
7.6 |
| Section 314 |
(a) |
4.2, 10.5 |
| |
(b) |
N/A |
| |
(c)(1) |
10.4 |
| |
(c)(2) |
10.4 |
| |
(c)(3) |
N/A |
| |
(d) |
N/A |
| |
(e) |
10.5 |
| |
(f) |
N/A |
| Section 315 |
(a) |
7.1 |
| |
(b) |
7.5 |
| |
(c) |
7.1 |
| |
(d) |
7.1 |
| |
(e) |
6.14 |
| Section 316 |
(a) |
2.10 |
| |
(a)(1)(A) |
6.12 |
| |
(a)(1)(B) |
6.13 |
| |
(b) |
6.8 |
| Section 317 |
(a)(1) |
6.3 |
| |
(a)(2) |
6.4 |
| |
(b) |
2.5 |
| Section 318 |
(a) |
10.1 |
* This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
This SUBORDINATED INDENTURE,
dated as of , 20 is made by and between THE FIRST BANCSHARES, INC., a Mississippi corporation (the “Company”),
and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as trustee
(the “Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings,
the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether
through the ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Service Agent.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday, or any day which is a federal holiday or any day on which banking institutions in the City of New York,
New York, any Place of Payment, or the city in which the Corporate Trust Office is located, are authorized or required by law, regulation
or executive order to close or remain closed.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at Rodney Square North, 1100 North Market Street, Wilmington, DE 19890, Attention: The First
Bancshares, Inc. Administrator, or such other address as the Trustee may designate from time to time by notice to the Holders and
the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Company).
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Designated Senior
Indebtedness” means any of the Company’s Senior Indebtedness that expressly provides that it is “designated senior
indebtedness” for purposes of this Indenture (provided that the instrument, agreement or other document creating or evidencing such
Senior Indebtedness may place limitations and conditions on the right of such Senior Indebtedness to exercise the rights of Designated
Senior Indebtedness).
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the Stated Maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America. “Exchange Act” means the Securities Exchange
Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which
are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered.
“Indebtedness”
means, with respect to any person, and without duplication, (a) all indebtedness, obligations and other liabilities (contingent or
otherwise) of such person for borrowed money (including obligations of the Company in respect of overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, whether or not evidenced by notes
or similar instruments) or evidenced by bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is
to the whole of the assets of such person or to only a portion thereof) (other than any account payable or other accrued current liability
or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services), (b) all reimbursement
obligations and other liabilities (contingent or otherwise) of such person with respect to letters of credit, bank guarantees or bankers’
acceptances, (c) all obligations and liabilities (contingent or otherwise) in respect of leases of such person required, in conformity
with generally accepted accounting principles, to be accounted for as capitalized lease obligations on the balance sheet of such person
and all obligations and other liabilities (contingent or otherwise) under any lease or related document (including a purchase agreement)
in connection with the lease of real property which provides that such person is contractually obligated to purchase or cause a third
party to purchase the leased property and thereby guarantee a minimum residual value of the leased property to the lessor and the obligations
of such person under such lease or related document to purchase or to cause a third party to purchase such leased property, (d) all
obligations of such person (contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement, (e) all direct
or indirect guaranties or similar agreements by such person in respect of, and obligations or liabilities (contingent or otherwise) of
such person to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of indebtedness, obligations or liabilities
of another person of the kind described in clauses (a) through (d), (f) any indebtedness or other obligations described in clauses
(a) through (e) secured by any mortgage, pledge, lien or other encumbrance existing on property which is owned or held by such
person, regardless of whether the indebtedness or other obligation secured thereby shall have been assumed by such person and (g) any
and all refinancings, replacements, deferrals, renewals, extensions and refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described in clauses (a) through (f).
“Indenture”
means this Subordinated Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,”
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, or otherwise.
“Officer”
means the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Opinion of Counsel”
means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or outside counsel designated by the Company, rendered, if applicable, in accordance with Section 314(c) of the
Trust Indenture Act.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Securities of or within any Series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as contemplated by Section 2.1.
“principal”
or “principal amount” of a Security means the principal amount of the Security plus, when appropriate, the premium,
if any, on, and any Additional Amounts in respect of, the Security.
“Representative”
means the (a) indenture trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with respect to
any Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Indebtedness, any holder
or owner of such Senior Indebtedness acting with the consent of the required persons necessary to bind such holders or owners of such
Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject,
in each case, who has direct responsibility for the administration of this Indenture.
“SEC” means
the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Senior Indebtedness”
means the principal, premium, if any, interest, including any interest accruing after bankruptcy, Additional Amounts, if any, and rent
or termination payment on or other amounts due on the Company’s current or future Indebtedness, whether created, incurred, assumed,
guaranteed or in effect guaranteed by the Company, including any deferrals, renewals, extensions, refundings, amendments, modifications
or supplements to the above. However, Senior Indebtedness does not include: (i) Indebtedness that expressly provides that it shall
not be senior in right of payment to the Securities or expressly provides that it is on the same basis or junior in right of payment to
the Securities; (ii) the Company’s Indebtedness to any of the Company’s Subsidiaries; and (iii) the Securities.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then
a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government
Obligations” means securities which are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and which in the case of clauses (a) and (b) are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
Section 1.2 Other
Definitions.
| Term |
Defined in Section |
| “Bankruptcy Law” |
6.1 |
| “Custodian” |
6.1 |
| “Event of Default” |
6.1 |
| “Legal Holiday” |
10.7 |
| “mandatory sinking fund payment” |
11.1 |
| “optional sinking fund payment” |
11.1 |
| “Paying Agent” |
2.4 |
| “Payment Blockage Notice” |
12.2 |
| “Registrar” |
2.4 |
| “Service Agent” |
2.4 |
| “successor person” |
5.1 |
Section 1.3 Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference
in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means
the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the
indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4 Rules of
Construction. Unless the context otherwise requires:
| (a) | a term has the meaning assigned to it; |
| (b) | an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted
accounting principles; |
| (c) | references to “generally accepted accounting principles” and “GAAP” shall mean
generally accepted accounting principles, consistently applied, in effect as of the time when and for the period as to which such accounting
principles are to be applied; |
| (d) | “or” is not exclusive; |
| (e) | words in the singular include the plural, and in the plural include the singular; and |
| (f) | provisions apply to successive events and transactions. |
Article II
THE SECURITIES
Section 2.1 Issuable
in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or
determined in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption
of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof
pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity
date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect
of any matters; provided that all Series of Securities shall be equally and ratably entitled to the benefits of this Indenture,
but all Securities issued hereunder shall be subordinate and junior in right of payment, to the extent and in the manner set forth in
Article XII, to all Senior Indebtedness of the Company.
Section 2.2 Establishment
of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established
(as to the Series generally, in the case of Section 2.2(a) and either as to such Securities within the Series or
as to the Series generally, in the case of Sections 2.2(b) through 2.2(q)) by or pursuant to a Board Resolution, and set forth
or determined in the manner provided in a Board Resolution, supplemental indenture or an Officers’ Certificate:
| (a) | the title of the Series (which shall distinguish the Securities of that particular Series from
the Securities of any other Series); |
| (b) | the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities
of the Series will be issued; |
| (c) | any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6); |
| (d) | the date or dates on which the principal of the Securities of the Series is payable; |
| (e) | the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine
such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the
Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest
payment date; |
| (f) | the Place of Payment where the principal of and interest, if any, on the Securities of the Series shall
be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means; |
| (g) | if applicable, the period or periods within which, the price or prices at which and the terms and conditions
upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company; |
| (h) | the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant
to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation; |
| (i) | the dates, if any, on which and the price or prices at which the Securities of the Series will be
repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations; |
| (j) | if other than minimum denominations of $1,000 and any integral multiple of $1,000 in excess thereof, the
denominations in which the Securities of the Series shall be issuable; |
| (k) | the forms of the Securities of the Series (which shall be in fully registered form) and whether the
Securities will be issuable as Global Securities; |
| (l) | if other than the entire principal amount thereof, the portion of the principal amount of the Securities
of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2; |
| (m) | the provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the
Series; |
| (n) | any addition to or change in the Events of Default which applies to any Securities of the Series and
any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 6.2; |
| (o) | any addition to or change in the covenants set forth in Article IV or V which applies to Securities
of the Series; |
| (p) | any other terms of the Securities of the Series (which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and |
| (q) | any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those appointed herein. |
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series,
unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution
and Authentication; Electronic Signatures.
Two Officers shall sign the
Securities for the Company by manual, facsimile signature, or electronic signature. Unless otherwise provided herein or in any other Securities,
the words “execute”, “execution”, “signed”, and “signature” and words of similar import
used in or related to any document to be signed in connection with this Indenture, any other Securities or any of the transactions contemplated
hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping
of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature
in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any Applicable Law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein
to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless
expressly agreed to by such Trustee pursuant to procedures approved by such Trustee.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. Such a signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not be taken lawfully; or (b) if the issuance of such Securities will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar
and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the Place of Payment specified with
respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment (the “Paying Agent”), where Securities of such Series may be surrendered for registration
of transfer or exchange (the “Registrar”) and where notices and demands (other than service of process) to or upon
the Company in respect of the Securities of such Series and this Indenture may be served (the “Service Agent”).
The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will
give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent
or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall
fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands (other than any service of process).
The Company may also from
time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind
such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of
its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities
of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent”
includes any additional service agent.
The Company hereby appoints
the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying
Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the
Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for
the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names
and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at such times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities;
provided that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as Registrar. The Trustee
may destroy any list furnished to it as provided in Section 2.6 upon receipt of a new list so furnished.
Section 2.7 Transfer
and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer
or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make
the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable
upon exchanges pursuant to Section 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the date a notice of redemption of Securities of that Series selected for
redemption is given and ending at the close of business on the day of such notice, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part, or (c) to register the transfer of or exchange Securities of any Series between
a record date and the relevant payment date.
Section 2.8 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or satisfactory indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of written notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company
shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9 Outstanding
Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance
with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security
is held by a protected purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due
and payable on such date of Maturity).
A Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any
request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities of a Series that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.
Section 2.11 Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon receipt of a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee, upon receipt of a Company Order, shall authenticate definitive Securities of the same Series and Stated Maturity
in exchange for temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the
definitive Securities.
Section 2.12 Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Cancelled Securities and coupons
held by the Trustee shall be destroyed by the Trustee in accordance with its customary procedures. The Company by Company Order may direct
the Trustee to deliver a certificate of such destruction to the Company.
Section 2.13 Defaulted
Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus,
to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on
a subsequent special record date. The Company shall fix the special record date and payment date. At least 10 days before the special
record date, the Company shall give to the Trustee and to each Securityholder of the Series a notice that states the special record
date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global
Securities.
| (a) | Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’
Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depository for such Global Security or Securities. |
| (b) | Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7
and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 for Securities registered in the names
of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered as a clearing agency
under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate
to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented
by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms. |
Except as provided in this Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository.
| (c) | Legend. Any Global Security issued hereunder shall bear a legend in substantially the following
form: |
“This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository.
This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository.”
| (d) | Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants
to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give
or take under this Indenture. |
| (e) | Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder
thereof. |
| (f) | Consents, Declaration and Directions. Except as provided in Section 2.14(e), the Company,
the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. |
Section 2.15 CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such numbers.
Article III
REDEMPTION
Section 3.1 Notice
to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of
Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or
is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the foregoing notice at least 45 days before the redemption date (or such shorter notice as may be acceptable
to the Trustee).
Section 3.2 Selection
of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture
or an Officers’ Certificate, if less than all the Securities of any Series issued on the same day with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the redemption date by the
Trustee, from the Outstanding Securities of such Series issued on such date with the same terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate, and, in the case of Global Securities, the particular Securities to be
redeemed shall be selected in accordance with the procedures of the Depository; provided that such method complies with the rules of
any national securities exchange or quotation system on which the Securities are listed (and the Company shall notify the Trustee of
any such listing), and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities
of that Series or any integral multiple thereof) of the principal amount of Securities of such Series of a denomination larger
than the minimum authorized denomination for Securities of that Series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities
of such Series.
The Trustee shall promptly
notify the Company and the Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Notwithstanding the foregoing,
if any Security to be redeemed is a Global Security then any partial redemption of that Series of Securities will be made in accordance
with the Depository’s applicable procedures among all Holders of such Series of Securities.
Section 3.3 Notice
of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall give a notice of
redemption in accordance with Section 10.2 to each Holder whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
| (b) | the redemption price and accrued interest, if any, to the redemption date payable as provided; |
| (c) | the name and address of the Paying Agent; |
| (d) | that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect
the redemption price; |
| (e) | that interest on Securities of the Series called for redemption ceases to accrue on and after the
redemption date; |
| (f) | the CUSIP number, if any; |
| (g) | any conditions precedent that must be satisfied prior to the redemption; and |
| (h) | any other information as may be required by the terms of the particular Series or the Securities
of a Series being redeemed. |
At the Company’s request
given at least five Business Days prior to the date such notice is to be given to Holders accompanied by the form of notice of redemption,
the Trustee shall give the notice of redemption to the Holders of the Securities to be redeemed in the Company’s name and at its
expense.
Section 3.4 Effect
of Notice of Redemption. Once notice of redemption is given as provided in Section 3.3, Securities of a Series called for
redemption become due and payable on the redemption date and at the redemption price, subject to, with respect to any redemption that
is conditioned upon the satisfaction of any conditions precedent, (i) the delay of such redemption date until such time as any or
all of such conditions precedent have been satisfied or (ii) the revocation of such redemption if the Company determines that such
conditions precedent will not be satisfied. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price
plus accrued interest to, but excluding, the redemption date; provided that installments of interest whose Stated Maturity is
on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered
at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit
of Redemption Price. On or before 11:00 A.M. New York City time, on the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security
of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
Article IV
COVENANTS
Section 4.1 Payment
of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that
it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2 SEC
Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the Company’s compliance with any
of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).
The Trustee shall have no duty to monitor or confirm, on a continuing basis or otherwise, whether any financial information has been
filed with the SEC or posted on the EDGAR system (or any successor electronic delivery procedure) or any website or whether the Company
has delivered the reports described under this Section 4.2 or otherwise complied with its obligations under this Section 4.2.
Section 4.3 Compliance
Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her
knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long
as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.4 Stay,
Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
Section 4.5 Corporate
Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right, license or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.
Section 4.6 Taxes.
The Company shall pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate
proceedings.
Article V
SUCCESSORS
Section 5.1 When
Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially
all of its properties and assets to, any person (a “successor person”), nor shall the Company permit any other person to
consolidate with or merge into it or convey, transfer or lease all or substantially all of its properties and assets to it, in either
case unless:
| (a) | the Company is the surviving corporation
or the successor person (if other than the Company) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s
obligations on the Securities and under this Indenture; and |
| (b) | immediately after giving effect to the
transaction, and treating any indebtedness that becomes the obligation of the Company or
any of its Subsidiaries as having been incurred at the effective date of such transaction
no Default or Event of Default shall have occurred and be continuing. |
The Company shall deliver
to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor
Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into
or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture and the Securities with the same effect as if such successor
person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance
or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
Article VI
DEFAULTS AND REMEDIES
Section 6.1 Events
of Default. “Event of Default,” wherever used herein with respect to Securities of any Series, means any one of the following
events, unless in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such
Series shall not have the benefit of said Event of Default:
| (a) | default in the payment of any interest on any Security of that Series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the
Trustee or with a Paying Agent prior to the expiration of such period of 30 days); |
| (b) | default in the payment of principal of any Security of that Series at its Maturity; |
| (c) | default in the deposit of any sinking fund payment, when and as due in respect of any Security of that
Series; |
| (d) | default in the performance or breach of any covenant or warranty of the Company in this Indenture (other
than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and
other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than
that Series), which default or breach continues uncured or unwaived in accordance with the provisions of this Indenture for a period of
90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of not less than 25.0% in principal amount of the outstanding Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; |
| (e) | the Company pursuant to or within the meaning of any Bankruptcy Law: |
| i. | commences a voluntary case, |
| ii. | consents to the entry of an order for relief against it in an involuntary case, |
| iii. | consents to the appointment of a Custodian of it or for all or substantially all of its property, |
| iv. | makes a general assignment for the benefit of its creditors, or |
| v. | generally is unable to pay its debts as the same become due; or |
| (f) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| i. | is for relief against the Company in an involuntary case, |
| ii. | appoints a Custodian of the Company or for all or substantially all of its property, or |
| iii. | orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days;
or |
| (g) | any other Event of Default provided with respect to Securities of that Series, which is specified in a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2(n). |
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration
of Maturity; Rescission and Annulment. Except to the extent provided otherwise in the establishing Board Resolution, supplemental
indenture or Officers’ Certificate for such Series, if an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or 6.1(f)), then in
every such case the Trustee or the Holders of not less than 25.0% in aggregate principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities
of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately
due and payable. If an Event of Default specified in Section 6.1(e) or 6.1(f) shall occur, the principal amount (or portion
thereof) of and accrued and unpaid interest, if any, on all outstanding Securities shall automatically become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a
declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any,
of Securities of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided
in Section 6.13.
No such rescission shall
affect any subsequent Default or impair any right consequent thereon.
Section 6.3 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
| (a) | default is made in the payment of any interest on any Security when such interest becomes due and payable
and such default continues for a period of 30 days, |
| (b) | default is made in the payment of principal of any Security at the Maturity thereof, or |
| (c) | default is made in the deposit of any sinking fund payment when and as due by the terms of a Security, |
then, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue
interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee
may File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.5 Trustee
may Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application
of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all
amounts due the Trustee under Section 7.7; and
Second: To the payment of
the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company.
Section 6.7 Limitation
on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
| (a) | such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the Securities of
that Series; |
| (b) | the Holders of not less than 25.0% in
principal amount of the outstanding Securities of that Series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder; |
| (c) | such Holder or Holders have offered to
the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request; |
| (d) | the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity or security has failed to institute any such
proceeding; and |
| (e) | no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series; |
it being understood and intended that no one
or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
Section 6.8 Unconditional
Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security
on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 6.10 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 6.11 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control
by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series; provided that:
| (a) | the Trustee shall have the right to decline
to follow any such direction if the Trustee, being advised by counsel, determines that such
direction shall be in conflict with any rule of law or with this Indenture; |
| (b) | the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction; and |
| (c) | the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability or expense for which it is not adequately indemnified, or is unduly prejudicial
to the rights of any other Holder (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders). |
Section 6.13 Waiver
of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may
on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and
its consequences, except a Default (a) in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration) or (b) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.14 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the redemption date).
Article VII
TRUSTEE
Section 7.1 Duties
of Trustee.
| (a) | If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs. |
| (b) | Except during the continuance of an Event of Default: |
| i. | the Trustee need perform only those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture against the Trustee, and |
| ii. | the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this Indenture. |
| (c) | The Trustee may not be relieved from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that: |
| i. | this paragraph does not limit the effect of paragraph (b) of this Section. |
| ii. | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| iii. | the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it
with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series. |
| (d) | Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (g) of this Section. |
| (e) | The Trustee may refuse to perform any duty or exercise any right or power at the request or direction
of any Holder or Holders pursuant to this Indenture, unless such Holder or Holders shall have offered and, if requested, provided to the
Trustee security or indemnity satisfactory to the Trustee in its sole and absolute discretion against any costs, losses, liabilities and
expenses which might be incurred by it in compliance with such request or direction. |
| (f) | The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required
by law. |
| (g) | No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or satisfactory indemnity against such risk is not assured to it. |
| (h) | The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities
and standard of care as are set forth in paragraphs (b) and (c) of this Section with respect to the Trustee. |
| (i) | The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes
to be authorized or within its rights or powers. |
| (j) | The Trustee is not required to give any bond or surety with respect to the performance of its duties or
the exercise of its powers under this Indenture. |
| (k) | The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed
as an obligation or duty to do so. |
Section 7.2 Rights
of Trustee.
| (a) | The Trustee may rely on and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
person not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein.
The Trustee need not investigate any fact or matter stated in the document. |
| (b) | Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate, an Opinion
of Counsel, or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate and/or Opinion of Counsel. |
| (c) | The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any Depository. |
| (d) | The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers. |
| (e) | The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered and, if requested, provided
to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction. |
| (f) | The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without
negligence and in good faith and in reliance thereon. |
| (g) | The Trustee may conclusively rely upon and shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit. |
| (h) | The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of
a particular Series and this Indenture. |
| (i) | Delivery of reports, information and documents (including, without limitation, reports contemplated in
this Section) to the Trustee is for information purposes only, and the Trustee’s receipts thereof shall not constitute actual or
constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with covenants under this Indenture, Securities, and guarantees (if any), as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates. |
| (j) | The Trustee shall have no responsibility for monitoring the Company’s compliance with any of its
covenants under this Indenture. |
| (k) | The Trustee shall not be responsible or liable for punitive, special, indirect, incidental, or consequential
loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of actions. |
| (l) | Any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture
shall not be construed as a duty. |
| (m) | The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations
under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without
limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires;
floods; terrorism; wars; civil or military disturbances; sabotage; epidemics; pandemics; quarantine restrictions; recognized public emergencies;
riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes;
acts of civil or military authorities or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other
wire or communication facility; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices
in the banking industry to resume performance as soon as practicable under the circumstances. |
| (n) | The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of any Series, relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series. |
Section 7.3 Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise
deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s
Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in
the Securities other than its authentication. In accepting the trust hereby created, the Trustee acts solely as Trustee under this Indenture
and not in its individual capacity and all persons, including without limitation the Holders of Securities and the Company having any
claim against the Trustee arising from this Indenture shall look only to the funds and accounts held by the Trustee hereunder for payment
except as otherwise provided herein.
Section 7.5 Notice
of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section 7.6 Reports
by Trustee to Holders. Within 60 days after each anniversary of this Indenture, following the date of the initial issuance of Securities
under this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar a brief report dated as of such anniversary date of this Indenture, in accordance with, and to the extent required
under, TIA Section 313.
A copy of each report at the
time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.
Section 7.7 Compensation
and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services hereunder as the Company and
the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred by it in connection with the performance of its duties under this Indenture. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee for and hold it harmless (including the cost of defending itself) against any and all
loss, liability, claim, suit or expense (including attorneys’ fees and expenses, and including other than taxes based upon, measured
by or determined by the income of the Trustee), including without limitation the costs and expenses of defending itself against any third-party
claim (whether asserted by any Holder or any other person), without negligence or willful misconduct, as finally determined by a court
of competent jurisdiction, arising out of or in connection with its acceptance or administration of the trust or trusts hereunder, including
the performance of its duties or the exercise of its powers hereunder and including the enforcement of this Indenture (including, without
limitation, this Section 7.7). With respect to any such claim other than a claim brought by the Company, (i) the Trustee shall
notify the Company promptly of any claim for which it may seek indemnity, (ii) the Company may at its option defend the claim, in
which event the Trustee shall cooperate in the defense and the Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel and (iii) the Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(e) or 6.1(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall
survive the resignation or removal of the Trustee and the termination of this Indenture.
Section 7.8 Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the outstanding Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company, in writing. The Company may remove the Trustee with respect to Securities
of one or more Series if:
| (a) | the Trustee fails to comply with Section 7.10; |
| (b) | the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law; |
| (c) | a Custodian or public officer takes charge of the Trustee or its property; or |
| (d) | the Trustee becomes incapable of acting. |
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the outstanding Securities of
the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor
Trustee shall give a notice of its succession to each Securityholder of each such Series in accordance with Section 10.2. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor
Trustee by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to or acquiring all or substantially all the corporate trust business of the Trustee (including the administration
of the trust created by this Indenture), shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to, or by succession to or acquisition of all or substantially all of the corporate trust business
of, such successor Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 7.10 Eligibility;
Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1), 310(a)(2) and
310(a)(5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Referential
Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Article VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided
in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
| i. | all Securities theretofore authenticated and delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or |
| ii. | all such Securities not theretofore delivered to the Trustee for cancellation |
| (1) | have become due and payable, or |
| | (2) | will
become due and payable at their Stated Maturity within one year, or |
| | (3) | are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company; or |
| | (4) | are
deemed paid and discharged pursuant to Section 8.3, as applicable; |
and the Company, in the case of clauses
(1), (2) and (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable
on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
| (b) | the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (c) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied
with. |
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2 Application
of Trust Funds; Indemnification.
| (a) | Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1,
all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking
fund payments or analogous payments as contemplated by Section 8.3 or 8.4. |
| (b) | The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against U.S. Government Obligations deposited pursuant to Section 8.3 or 8.4 or the interest and principal received in
respect of such obligations other than any payable by or on behalf of Holders. |
| (c) | The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government
Obligations or money held by it as provided in Section 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money were deposited
or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture. |
Section 8.3 Legal
Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2(p), to
be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of any Series on the 90th day after the date of the deposit referred to in subparagraph (c) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the same), except as
to:
| (a) | the rights of Holders of Securities of such Series to receive, from the trust funds described in
subparagraph (c) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding
Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit
of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of such Series; |
| (b) | the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and |
| (c) | the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following
conditions shall have been satisfied: |
| i. | the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment
of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a regionally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments
in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments
are due; |
| ii. | such deposit will not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound; |
| iii. | no Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the 90th day after such date; |
| iv. | the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since
the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred; |
| v. | the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit
was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and |
| vi. | the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to the legal defeasance contemplated by this Section have been complied
with. |
Section 8.4 Covenant
Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2(p) to be inapplicable to Securities
of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit
to comply with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3,
4.4, 4.6, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board
Resolution or an Officers’ Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate
delivered pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series; provided that the following conditions shall have been satisfied:
| (a) | With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S.
Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a regionally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest,
if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of
interest or principal and such sinking fund payments are due; |
| (b) | Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound; |
| (c) | No Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the 90th day after such date; |
| (d) | The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the
Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such deposit and covenant defeasance had not occurred; and |
| (e) | The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have
been complied with. |
Section 8.5 Repayment
to Company. The Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal and interest that remains unclaimed for six months. After that, Securityholders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another person.
Article IX
AMENDMENTS AND WAIVERS
Section 9.1 Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without
the consent of any Securityholder by indentures supplemental hereto:
| (a) | to cure any ambiguity, defect or inconsistency; |
| (b) | to comply with Article V; |
| (c) | to evidence the succession of another corporation to the Company, or successive successions, pursuant
to Article V, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company herein
and in the Securities; |
| (d) | to add to the covenants of the Company such further covenants, restrictions, conditions or provisions
as its Board of Directors shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein set forth, with such period of grace, if any,
and subject to such conditions as such supplemental indenture may provide; |
| (e) | to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA, or under any similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the TIA, excluding however, the provisions referred to in Section 316(a)(2) of
the TIA or any corresponding provision in any similar federal statute hereafter enacted; |
| (f) | to add any additional Events of Default (and if such Events of Default are to be for the benefit of less
than all Series of Securities, stating that such are expressly being included solely for the benefit of such Series); |
| (g) | to modify, eliminate or add to any of the provisions of this Indenture; provided that any such
change or elimination (i) shall become effective only when there is no Security of any Series Outstanding and created prior
to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any
Security outstanding; |
| (h) | to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| (i) | to make any change that does not adversely affect the rights of any Securityholder; |
| (j) | to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as
permitted by this Indenture; |
| (k) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or |
| (l) | to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture
under the TIA. |
Section 9.2 With
Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of
at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of
at least a majority in principal amount of the outstanding Securities of any Series by written notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this Section becomes effective, the Company shall give to the Holders of Securities affected thereby a notice briefly describing
the supplemental indenture or waiver in accordance with Section 10.2. Any failure by the Company to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
Without the consent of each Securityholder affected, an amendment or waiver may not:
| (a) | reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; |
| (b) | reduce the rate of or extend the time for payment of interest (including default interest) on any Security; |
| (c) | reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous obligation; |
| (d) | reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; |
| (e) | waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security
(except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of
the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); |
| (f) | make the principal of or interest, if any, on any Security payable in any currency other than that stated
in the Security; |
| (g) | make any change in Section 6.8, 6.13, or 9.3 (this sentence); or |
| (h) | waive a redemption payment with respect to any Security. |
Section 9.4 Compliance
with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation
and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice
of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
Section 9.6 Notation
on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall, upon receipt of a Company
Order, authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee
Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent
have been satisfied, the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental
indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The
Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects
it.
Article X
MISCELLANEOUS
Section 10.1 Trust
Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required
or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if
in writing and delivered in person or mailed by first-class mail:
if to the Company:
The First Bancshares, Inc.
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
Attention: Dee Dee Lowery, Executive Vice President and
Chief Financial Officer
Telephone: (601) 268-8998
if to the Trustee:
Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: The First Bancshares, Inc.
Administrator
Telephone: (302) 636-6398
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication
is given in the manner provided in this Section 10.2, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
If the Company gives a notice
or communication to Securityholders, it shall give a copy to the Trustee and each Agent at the same time. Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including
any notice of redemption or repurchase) to a Securityholder of a Security (whether by mail or otherwise), such notice shall be sufficiently
given in respect of Global Securities if given to Depository (or its designee) pursuant to the applicable procedures from Depository or
its designee, including by electronic mail in accordance with accepted practices at Depository.
Section 10.3 Communication
by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that
Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
| (a) | an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and |
| (b) | an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with. |
Section 10.5 Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
| (a) | a statement that the person making such certificate or opinion has read such covenant or condition; |
| (b) | a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; |
| (c) | a statement that, in the opinion of such person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (d) | a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied
with. |
Section 10.6 Rules by
Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of one or more Series.
Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal
Holidays. Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular
Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.8 No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange
of copies of this Indenture and of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”)
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of
the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g.,
“.pdf” or “.tif”) shall be deemed to be their original signatures for all purposes.
Section 10.10 Governing
Laws; Waiver of Jury Trial; Jurisdiction. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED WITH THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING AMONG THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY OR THEREBY.
The parties hereby (i) irrevocably
submit to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the City of New York, (ii) waive
any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts
are an inconvenient forum or do not have jurisdiction over any party.
Section 10.11 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 10.13 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table
of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Article XI
SINKING FUNDS
Section 11.1 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a
Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking
fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2 Satisfaction
of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such
Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking
fund redemption) and (b) apply as credit Securities of such Series to which such sinking fund payment is applicable and which
have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities
(except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional
redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to
the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the
Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to
this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash
payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of
a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment; provided, however, that the Trustee or such Paying Agent shall from time to time upon
receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal
to the cash payment required to be released to the Company.
Section 11.3 Redemption
of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture
or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that
Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking
fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise
indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities)
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
Article XII
SUBORDINATION OF SECURITIES
Section 12.1 Agreement
of Subordination. The Company covenants and agrees, and each Holder of Securities issued hereunder by accepting a Security likewise
covenants and agrees, that all Securities shall be issued subject to the provisions of this Article XII; and each Person holding
any Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such provisions.
The payment of the principal
of and interest on all Securities (including, but not limited to, the redemption price with respect to the Securities called for redemption
in accordance with Article III as provided in this Indenture) issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding
at the date of this Indenture or thereafter incurred.
No provision of this Article XII
shall prevent the occurrence of any Default or Event of Default hereunder.
Section 12.2 Payments
to Holders. Except as otherwise provided in a supplemental indenture, no payment shall be made with respect to the principal of or
interest on the Securities (including, but not limited to, the redemption price with respect to the Securities to be called for redemption
in accordance with Article III as provided in this Indenture), except payments and distributions made by the Trustee as permitted
by the first or second paragraph of Section 12.5, if:
| (a) | a default in the payment of principal, premium, interest, rent or other obligations due on any Senior
Indebtedness occurs and is continuing (or, in the case of Senior Indebtedness for which there is a period of grace, in the event of such
a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness)
(a “payment default”), unless and until such default shall have been cured or waived or shall have ceased to exist; or |
| (b) | a default, other than a payment default, on a Designated Senior Indebtedness occurs and is continuing
that then permits holders of such Designated Senior Indebtedness to accelerate its maturity and the Trustee receives a notice of the default
(a “Payment Blockage Notice”) from a Representative or the Company. |
If the Trustee receives any
Payment Blockage Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes of this
Section unless and until (A) at least 365 days shall have elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice, and (B) all scheduled payments of principal, premium, if any, and interest on the Securities that have come due
have been paid in full in cash. No non-payment default that existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall
resume payments on and distributions in respect of the Securities upon the earlier of:
| (1) | the date upon which the applicable default is cured or waived or ceases to exist, or |
| (2) | in the case of a default referred to in clause (b) above, 179 days pass after notice is received
if the maturity of such Designated Senior Indebtedness has not been accelerated, unless this Article XII otherwise prohibits the
payment or distribution at the time of such payment or distribution. |
Upon any payment by the Company,
or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution
or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, all amounts due or to become due upon all Senior Indebtedness shall first be paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or payment thereof in accordance with its terms provided for in cash or other
payment satisfactory to the holders of such Senior Indebtedness, before any payment is made on account of the principal of or interest
on the Securities (except payments made pursuant to Article VI from monies deposited with the Trustee pursuant thereto prior to commencement
of proceedings for such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation
or reorganization of the Company or bankruptcy, insolvency, receivership or other proceeding, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or
the Trustee would be entitled, except for the provision of this Article XII, shall (except as aforesaid) be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders
of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, or as otherwise required by law
or a court order) or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution or provision
therefor is made to the Holders of the Securities or to the Trustee.
For purposes of this Article XII,
the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other person provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this Article XII with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new person,
if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness (other than
leases which are not assumed by the Company or the new person, as the case may be) are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another person or the
liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another person upon the terms and conditions provided for in Article V shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 12.2 if such other person shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article V.
In the event of the acceleration
of the Securities because of an Event of Default, no payment or distribution shall be made to the Trustee or any Holder of Securities
in respect of the principal of or interest on the Securities (including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article III as provided in this Indenture), except payments and distributions
made by the Trustee as permitted by the first or second paragraph of Section 12.5, until all Senior Indebtedness has been paid in
full in cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded in accordance with
the terms of this Indenture. If payment of the Securities is accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration at the address set forth in the notice from the Agent (or successor agent) to the Trustee
as being the address to which the Trustee should send its notice pursuant to this Section 12.2, unless there are no payment obligations
of the Company thereunder and all obligations thereunder to extend credit have been terminated or expired.
In the event that, notwithstanding
the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received by the Trustee
or the Holders of the Securities before all Senior Indebtedness is paid in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory
to the holders of such Senior Indebtedness, such payment or distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 12.2
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.7. This Section 12.2 shall be subject to
the further provisions of Section 12.5.
Section 12.3 Subrogation
of Securities. Subject to the payment in full of all Senior Indebtedness, the rights of the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article XII
(equally and ratably with the holders of all Indebtedness of the Company which by its express terms is subordinated to other Indebtedness
of the Company to substantially the same extent as the Securities are subordinated and is entitled to like rights of subrogation) to
the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal and interest on the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XII, and no payment over
pursuant to the provisions of this Article XII, to or for the benefit of the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior Indebtedness; and no payments or distributions of cash, property
or securities to or for the benefit of the Holders of the Securities pursuant to the subrogation provisions of this Article XII,
which would otherwise have been paid to the holders of Senior Indebtedness shall be deemed to be a payment by the Company to or for the
account of the Securities. It is understood that the provisions of this Article XII are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
Nothing contained in this
Article XII or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XII of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution
of assets of the Company referred to in this Article XII, the Trustee, subject to the provisions of Section 7.1, and the Holders
of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon and all other facts pertinent thereto or to this Article XII.
Section 12.4 Authorization
to Effect Subordination. Each Holder of a Security by the holder’s acceptance thereof authorizes and directs the Trustee on
the holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this
Article XII and appoints the Trustee to act as the holder’s attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.3 hereof
at least 30 days before the expiration of the time to file such claim, the holders of any Senior Indebtedness or their representatives
are hereby authorized to file an appropriate claim for and on behalf of the Holders of the Securities.
Section 12.5 Notice
to Trustee. The Company shall give prompt written notice in the form of an Officers’ Certificate to a Responsible Officer of
the Trustee and to any paying agent of any fact known to the Company which would prohibit the making of any payment of monies to or by
the Trustee or any paying agent in respect of the Securities pursuant to the provisions of this Article XII. Notwithstanding the
provisions of this Article XII or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article XII, unless and until a Responsible Officer of the Trustee shall have received written notice
thereof at the Corporate Trust Office from the Company (in the form of an Officers’ Certificate) or a Representative or a holder
or holders of Senior Indebtedness or from any trustee thereof; and before the receipt of any such written notice, the Trustee, subject
to the provisions of Section 7.1, shall be entitled in all respects to assume that no such facts exist; provided that if
on a date not fewer than two Business Days prior to the date upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of, or premium, if any, or interest on any Security) the Trustee
shall not have received, with respect to such monies, the notice provided for in this Section 12.5, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after
such prior date.
Notwithstanding anything in
this Article XII to the contrary, nothing shall prevent any payment by the Trustee to the Holders of monies deposited with it pursuant
to Section 8.1, and any such payment shall not be subject to the provisions of Section 12.1 or 12.2.
The Trustee, subject to the
provisions of Section 7.1, shall be entitled to rely on the delivery to it of a written notice by a Representative or a person representing
himself or herself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been
given by a Representative or a holder of Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness
to participate in any payment or distribution pursuant to this Article XII, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, the extent to which such person
is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article XII,
and if such evidence is not furnished the Trustee may defer any payment to such person pending judicial determination as to the right
of such person to receive such payment.
Section 12.6 Trustee’s
Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XII
in respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing
in Section 7.11 or elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article XII
shall apply to the Company’s obligations to the Trustee under Section 7.7.
With respect to the holders
of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically
set forth in this Article XII, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
and, subject to the provisions of Section 7.1, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to Holders of Securities, the Company or any other person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article XII or otherwise.
Section 12.7 No
Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
Section 12.8 Article Applicable
to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article shall (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that the first paragraph of Section 12.5
shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 12.9 Senior
Indebtedness Entitled to Rely. The holders of Senior Indebtedness (including, without limitation, Designated Senior Indebtedness)
shall have the right to rely upon this Article XII, and no amendment or modification of the provisions contained herein shall diminish
the rights of such holders unless such holders shall have agreed in writing thereto.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
THE FIRST BANCSHARES, INC. |
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By: |
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Name: |
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Title: |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
404-881-7000 | Fax: 404-881-7777
August 22, 2023
| The First Bancshares, Inc. |
| 6480 U.S. Highway 98 West |
| Hattiesburg, Mississippi 39402 |
| Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to The First Bancshares, Inc.,
a Mississippi corporation (the “Company”), in connection with its filing on the date hereof of a Registration Statement on
Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”).
This opinion is being furnished pursuant to Item
16 of Form S-3 and Item 601(b)(5) of Regulation S-K under the Securities Act.
The Registration Statement registers an indeterminate
amount of: (i) shares of Common Stock, par value $1.00 per share, of the Company (the “Common Stock”); (ii) shares
of Preferred Stock, par value $1.00 per share, of the Company (the “Preferred Stock”); (iii) senior debt securities and
subordinated debt securities (collectively, the “Debt Securities”), which may be issued pursuant to a senior debt indenture
(the “Senior Debt Indenture”) between the Company and Wilmington Trust, National Association, as trustee (the “Senior
Debt Trustee”), or a subordinated debt indenture (the “Subordinated Debt Indenture” and together with the Senior Debt
Indenture, the “Indentures”) between the Company and Wilmington Trust, National Association, as trustee (the “Subordinated
Debt Trustee” and together with the Senior Debt Trustee, the “Trustees”); (iv) depositary shares to purchase fractional
shares of Preferred Stock (the “Depositary Shares”), which may be issued pursuant to one or more depositary agreements (each
a “Depositary Agreement”) to be entered into between the Company and the depositary agent to be named therein (the “Depositary
Agent”); (v) purchase contracts to purchase the Company’s securities (the “Purchase Contracts”), which may
be issued under one or more purchase contract agreements (each, a “Purchase Contract Agreement”); (vi) a combination
of two or more securities that may be offered in the form of units (the “Units”); (vii) warrants to purchase the Company’s
securities (the “Warrants”); and (viii) rights to purchase the Company’s securities (the “Rights”).
The Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Purchase Contracts, Units, Warrants, and Rights are collectively
referred to herein as the “Securities”.
| Alston & Bird LLP |
www.alston.com |
Atlanta | Beijing | Brussels | Charlotte | Dallas
| Fort Worth | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.
| The First Bancshares, Inc. | |
| August 22, 2023 | |
| Page 2 | |
In rendering the opinions expressed herein, and
except as hereinafter limited, we have considered such matters of law and of fact, including the examination of originals or copies, certified
or otherwise identified to our satisfaction, of such records and documents of the Company, including the Amended and Restated Articles
of Incorporation of the Company, as amended; the Amended and Restated Bylaws of the Company, as amended; the Registration Statement; and
records of the proceedings of the Board of Directors of the Company as we deemed necessary for purposes of expressing the opinions set
forth herein. In our examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity
of all documents submitted to us as original documents and the conformity to original documents submitted to us as certified, conformed,
facsimile, electronic or photostatic copies. In addition, we have assumed that the issuance and sale of such Securities will not violate
or result in a default under or breach of any agreement or instrument binding upon the Company, whether by virtue of a waiver, consent,
amendment or otherwise.
As to certain factual matters relevant to this
opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our satisfaction, of such records,
agreements, documents and instruments, including certificates or comparable documents of officers of the Company and of public officials,
as we have deemed appropriate as a basis for the opinions hereinafter set forth. Except to the extent expressly set forth herein, we have
made no independent investigations with regard thereto, and, accordingly, we do not express any opinion or belief as to matters that might
have been disclosed by independent verification.
This opinion is limited in all respects to the
laws of the State of Mississippi, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such
laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may
be inferred beyond the matters expressly stated herein.
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, it is our opinion that:
(1) Any
shares of Common Stock, when (a) the underwriting or similar agreement has been duly authorized, executed and delivered by the parties
thereto; (b) the Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the Company
have taken all necessary action to approve the issuance of the Common Stock; and (c) the shares of Common Stock have been delivered
to and paid for by the purchasers thereof, will be duly authorized and validly issued, fully paid and nonassessable shares of Common Stock;
(2) Any
shares of Preferred Stock, when (a) the underwriting or similar agreement has been duly authorized, executed and delivered by the
parties thereto; (b) the Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers of
the Company have taken all necessary action to approve the issuance of the Preferred Stock; and (c) the Preferred Stock has been
duly issued and delivered pursuant to any underwriting agreement or a comparable agreement, will be duly authorized, validly issued, fully
paid, and nonassessable;
(3) Any
Debt Securities, assuming the Indenture has been duly authorized, executed and delivered by the Trustee and the Company, and when (a) the
Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the Company have taken all necessary
corporate action to approve and establish the terms of the Debt Securities and to authorize and approve the issuance thereof; (b) any
supplemental indenture, officers’ certificate, or board resolution in respect of the issuance of any Debt Securities has been duly
authorized, executed, and delivered by the Trustee and the Company; (c) the specific terms of a particular series of Debt Securities
have been duly authorized and established in accordance with the Indenture and any supplemental indenture, officers’ certificate,
or board resolution to be entered into or adopted in connection with the issuance of such Debt Securities; and (d) such Debt Securities
have been duly authorized, executed, authenticated, issued, and delivered in accordance with the Indenture and any supplemental indenture,
officers’ certificate, or board resolution to be entered into or adopted in connection with the issuance of such Debt Securities
and the applicable underwriting or other agreement against payment therefor, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms subject;
| The First Bancshares, Inc. | |
| August 22, 2023 | |
| Page 3 | |
(4) Any
Depositary Shares, when (a) the Depositary Agreement has been duly authorized, executed and delivered by the parties thereto; (b) the
Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the Company have taken all necessary
corporate action to approve and establish the terms of the Depositary Shares and to authorize and approve the issuance thereof; and (c) the
Depositary Shares have been issued and delivered to and paid for by the purchasers thereof, will be validly issued and will represent
fractional interests in validly issued, fully paid, and non-assessable Preferred Stock;
(5) Any
Purchase Contracts, when (a) the Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers
of the Company have taken all necessary corporate action to approve and establish the terms of the Purchase Contracts and to authorize
and approve the issuance thereof; (b) the Purchase Contract Agreement to be entered into in connection with the issuance of any Purchase
Contracts has been duly authorized, executed and delivered by the Company and the parties thereto; (c) the specific terms of the
Purchase Contracts have been duly authorized and established in accordance with the Purchase Contract Agreement; and (d) such Purchase
Contracts have been duly authorized, executed, issued, and delivered in accordance with the Purchase Contract Agreement and the applicable
underwriting or other agreement against payment therefor, such Purchase Contracts will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms;
(6) Any
Units, when (a) the Board of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the
Company have taken all necessary corporate action to approve and establish the terms of the Units and to authorize and approve the issuance
thereof; and (b) such Units have been duly authorized, executed, issued, and delivered in accordance with the applicable underwriting
or other agreement against payment therefor, such Units will constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms;
(7) Any
Warrants, when (a) the warrant agreement has been duly authorized, executed and delivered by the parties thereto; (b) the Board
of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the Company have taken all necessary
corporate action to approve and establish the terms of the Warrants and to authorize and approve the issuance thereof; and (c) the
Warrants have been delivered to and paid for by the purchasers thereof, will be validly issued and will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with their terms; and
| The First Bancshares, Inc. | |
| August 22, 2023 | |
| Page 4 | |
(8) Any
Rights, when (a) the rights agreement has been duly authorized, executed and delivered by the parties thereto; (b) the Board
of Directors of the Company or a duly authorized committee thereof and the appropriate officers of the Company have taken all necessary
corporate action to approve and establish the terms of the Rights and to authorize and approve the issuance thereof; and (c) the
Rights have been delivered to and paid for by the purchasers thereof, will be validly issued and will constitute valid and binding obligations
of the Company enforceable against the Company in accordance with their terms subject.
In connection with the opinions expressed above,
we have assumed that, at or prior to the time of the delivery of any such Security: (i) the Board of Directors of the Company or
a duly authorized committee thereof shall have duly established the terms of such Security and duly authorized the issuance and sale of
such Security and such authorization shall not have been modified or rescinded; (ii) the Company shall remain validly existing as
a corporation in good standing under the laws of the State of Mississippi; (iii) the Registration Statement shall have become effective
and such effectiveness shall not have been terminated or rescinded; (iv) the Indentures and the Debt Securities, the Depositary Agreement,
the Purchase Contract Agreement, the unit agreement, the warrant agreement, and the rights agreement, as applicable, are each valid, binding
and enforceable agreements of each party thereto (other than the Company); and (v) there shall not have occurred any change in law
affecting the validity or enforceability of such security. We have also assumed that the execution, delivery and performance by the Company
of any Security whose terms are established subsequent to the date hereof (a) require no action by or in respect of, or filing with,
any governmental body, agency or official and (b) do not contravene, or constitute a default under, any provision of applicable law
or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon the Company.
Insofar as the foregoing opinions relate to the
legality, validity, or binding effect of any agreement or obligation of the Company, such opinions are subject to subject to and limited
by (i) the effects of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law), including, without limitation, (a) principles governing the availability of specific performance, injunctive relief,
or other equitable remedies, (b) principles affording traditional equitable defenses (e.g., waiver, laches and estoppel), (c) good
faith and fair dealing, (d) reasonableness, (e) materiality of breach, (f) impracticability or impossibility of performance,
(g) the effect of obstruction or failure to perform or otherwise act in accordance with an agreement by any person, and (h) unconscionability,
the application of which may, among other things, deny parties thereto certain of the rights and remedies granted to them under the Securities
or the Indenture, including, without limitation, rights to specific performance, injunctive relief, and the appointment of a receiver;
(ii) the effect of bankruptcy, insolvency, fraudulent transfer, liquidation, reorganization, moratorium, conservatorship, receivership,
or other similar laws of general applicability affecting the rights and remedies of creditors generally; and (iii) certain other
limitations that exist relating to the rights of set-off, reimbursement (including, without limitation, for attorney’s fees and
other expenses), indemnification, exculpation, or contribution by virtue of public policy.
| The First Bancshares, Inc. | |
| August 22, 2023 | |
| Page 5 | |
This opinion letter is provided to you for your
use solely for the benefit of the Company in connection with the matters addressed herein and may not be used, circulated, quoted, or
otherwise referred to or relied upon by any other person or for any other purpose without our express written consent or used in any other
transaction or context. The only opinions rendered by us in this opinion letter consist of those matters set forth in numbered paragraphs
(1) – (8) hereof, and no opinion may be implied or inferred beyond those opinions expressly stated herein. This opinion
letter is rendered as of the date hereof, and we make no undertaking and expressly disclaim any duty to supplement or update this opinion
letter, if, after the date hereof, facts or circumstances come to our attention or changes in the law occur which could affect such opinions
and other statements expressed herein.
We consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving our consent, we do not hereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
ALSTON & BIRD LLP
| By: |
/s/ Mark C. Kanaly |
|
| |
Mark C. Kanaly |
|
| |
A partner |
|
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
The First Bancshares, Inc.
Hattiesburg, Mississippi
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of The First Bancshares, Inc. (the “Company”) of our report dated March 1, 2023, on our audits
of the consolidated financial statements of the Company as of December 31, 2022 and 2021, and for each of the years in the three-year
period ended December 31, 2022, which report is included in the Company’s Annual Report on Form 10-K. We also consent
to the incorporation by reference of our report dated March 1, 2023, on our audit of the internal control over financial reporting
of the Company as of December 31, 2022, which report is included in the Company’s Annual Report on Form 10-K. We also
consent to the reference to our firm under the caption “Experts.”
FORVIS, LLP
(Formerly, BKD, LLP)
Jackson, Mississippi
August 22, 2023
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of The First Bancshares, Inc of our report dated March 12, 2021 on the consolidated statements
of income, comprehensive income (loss), changes in stockholders’ equity, and cash flows for the year ended December 31, 2020 appearing
in the Annual Report on Form 10-K of The First Bancshares, Inc. for the year ended December 31, 2022, and to the reference to us under
the heading “Experts” in the prospectus.
Atlanta, Georgia
August 22, 2023
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of The First Bancshares, Inc. of our report dated March 10, 2023 relating to the
consolidated financial statements of Heritage Southeast Bancorporation, Inc. included in the Current Report on Form 8-K/A filed
by The First Bancshares, Inc. on March 15, 2023.
We also consent to the reference to us under the
heading "Experts" in the prospectus included with the Form S-3.
Atlanta, Georgia
August 22, 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)
The First Bancshares, Inc.
|
(Exact name of obligor as specified in its charter)
|
| Mississippi |
64-0862173 |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
(Address of principal executive offices, including
zip code)
Senior Debt Securities
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| | | |
| | | Comptroller of Currency, Washington, D.C. |
| | | Federal Deposit Insurance Corporation, Washington, D.C. |
| | | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
| | | |
| | | The trustee is authorized to exercise
corporate trust powers. |
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records of the
trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not applicable.
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National
Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 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. |
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 22nd day of August, 2023.
| |
WILMINGTON TRUST, NATIONAL
ASSOCIATION |
| |
|
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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. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall
have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval
of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits
and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits
of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change
the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders,
subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of
this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this
association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may
call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice
of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting
by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary,
the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth,
the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined
in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her
heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection
with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative
or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however,
that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses
advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors
or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide
indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or
her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated
party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may
be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board
of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated
party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination
that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank
in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely
affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated
party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant
to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in
the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described
in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party
(or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given
under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon
(a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors
or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators)
is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders,
shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding.
In the event that a majority of the members of
the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining
members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of
the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth
have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors
may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board
of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize
independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether
the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the
rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive
amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the
basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on
the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may
be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors
or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement
of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of
any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter
be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the
board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles
of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party
(or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a
majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification
is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding
or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated
parties.
ELEVENTH. These articles of association
may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock
of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association
for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 28, 2022)
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders
to elect directors and transact whatever other business may properly come before the meeting shall be held at the main office of the association,
Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00 o'clock p.m. on the first Tuesday in March of
each year, or at such other place and time as the board of directors may designate, or if that date falls on a legal holiday in Delaware,
on the next following banking day. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and no
more than 60 days prior to the date thereof, addressed to each shareholder at his/her address appearing on the books of the association.
If, for any cause, an election of directors is not made on that date, or in the event of a legal holiday, on the next following banking
day, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the board of directors, or, if
the directors fail to fix the date, by shareholders representing two-thirds of the shares. In these circumstances, at least 10 days’
notice must be given by first class mail to shareholders.
Section 2. Special Meetings. Except as otherwise specifically
provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board of directors or by any
one or more shareholders owning, in the aggregate, not less than fifty percent of the stock of the association. Every such special meeting,
unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the
date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice stating the purpose
of the meeting.
The board of directors may fix a record date for determining shareholders
entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting.
The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for
the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders
or the board of directors to amend the articles of association or bylaws, whether or not such bylaws may be amended by the board of directors
in the absence of shareholder approval.
If an annual or special shareholders' meeting is adjourned to a
different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced
at the meeting before adjournment, unless any additional items of business are to be considered, or the association becomes aware of
an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is
adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to
persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the
election takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
Section 3. Nominations of Directors. Nominations for election
to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the
association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing management
of the association, shall be made in writing and shall be delivered or mailed to the president of the association and the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election
of directors; provided, however, that if less than 21 days' notice of the meeting is given to shareholders, such nomination shall
be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on
which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying
shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion,
be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
Section 4. Proxies. Shareholders may vote at any meeting
of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. Proxies
shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall be dated and filed with
the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written
confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting shall be accepted.
Section 5. Quorum. A majority of the outstanding
capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise
provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn
any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the
articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the
election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the
shareholders.
ARTICLE II
Directors
Section 1. Board of Directors. The board of directors shall
have the power to manage and administer the business and affairs of the association. Except as expressly limited by law, all corporate
powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board of directors shall consist
of not less than five nor more than twenty-five members, unless the OCC has exempted the bank from the 25-member limit. The exact number
within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting. The secretary or treasurer,
upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect of their election and of
the time at which they are required to meet at the main office of the association, or at such other place in the cities of Wilmington,
Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the association for the succeeding
year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within 30 days thereof.
If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn the meeting, from time to time,
until a quorum is obtained.
Section 4. Regular Meetings. The Board of Directors may,
at any time and from time to time, by resolution designate the place, date and hour for the holding of a regular meeting, but in the absence
of any such designation, regular meetings of the board of directors shall be held, without notice, on the first Tuesday of each March,
June and September, and on the second Tuesday of each December at the main office or other such place as the board of directors
may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held on the next banking
business day unless the board of directors shall designate another day.
Section 5. Special Meetings. Special meetings of the board
of directors may be called by the Chairman of the Board of the association, or at the request of two or more directors. Each member of
the board of directors shall be given notice by telegram, first class mail, or in person stating the time and place of each special meeting.
Section 6. Quorum. A majority of the entire board
then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws, but a lesser number
may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of
directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted, except
selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of
directors may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference Telephone. Any one or
more members of the board of directors or any committee thereof may participate in a meeting of such board or committees by means of a
conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same
time. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 8. Procedures. The order of business and all other
matters of procedure at every meeting of the board of directors may be determined by the person presiding at the meeting.
Section 9. Removal of Directors. Any director may be removed
for cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by vote of the stockholders. Any
director may be removed without cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by the
vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed for cause, at any meeting
of the directors notice of which shall have referred to the proposed action, by vote of a majority of the entire Board of Directors.
Section 10. Vacancies. When any vacancy occurs among the
directors, a majority of the remaining members of the board of directors, according to the laws of the United States, may appoint a director
to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for that purpose at which a quorum
is present, or if the directors remaining in office constitute fewer than a quorum of the board of directors, by the affirmative vote
of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that purpose in conformance
with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the right to multiply
the number of votes he or she is entitled to cast by the number of vacancies being filled and cast the product for a single candidate
or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason of a resignation
effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for
the management, supervision, and administration of the association. The board of directors may delegate its power, but none of its responsibilities,
to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized
by committees of the board of directors before such policies become effective. Each committee must have one or more member(s), and who
may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board
of directors. Provisions of the articles of association and these bylaws governing place of meetings, notice of meeting, quorum and voting
requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of
members to it must be approved by the board of directors.
Section 1. Loan Committee. There shall be a loan committee
composed of not less than 2 directors, appointed by the board of directors annually or more often. The loan committee, on behalf of the
bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell bills of exchange, to examine
and approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when the board of directors is
not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee shall keep minutes of its
meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and
any action taken by the board of directors with respect thereto shall be entered in the minutes of the board of directors.
Section 2. Investment Committee. There shall be an investment
committee composed of not less than 2 directors, appointed by the board of directors annually or more often. The investment committee,
on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments thereto, to purchase
and sell securities, to exercise authority regarding investments and to exercise, when the board of directors is not in session, all other
powers of the board of directors regarding investment securities that may be lawfully delegated. The investment committee shall keep minutes
of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present,
and any action taken by the board of directors with respect thereto shall be entered in the minutes of the board of directors.
Section 3. Examining Committee. There shall be an examining
committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more
often. The duty of that committee shall be to examine at least once during each calendar year and within 15 months of the last examination
the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to
report the result of such examination in writing to the board of directors at the next regular meeting thereafter. Such report shall state
whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall
recommend to the board of directors such changes in the manner of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph of this section
3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee
of the association's parent corporation by a resolution duly adopted by the board of directors.
Section 4. Trust Audit Committee. There shall be a trust
audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees. The board of directors may
appoint, from time to time, from its own members, compensation, special litigation and other committees of one or more persons, for such
purposes and with such powers as the board of directors may determine.
However, a committee may not:
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (4) | Amend articles of association; |
| (5) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences
and limitations of a class or series of shares. |
Section 6. Committee Members' Fees. Committee members may
receive a fee for their services as committee members and traveling and other out-of-pocket expenses incurred in attending any meeting
of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or a fixed sum to be paid
quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the fee and the basis on which
it shall be paid shall be determined by the board of directors.
ARTICLE IV
Officers and Employees
Section 1. Officers. The board of directors shall
annually, at the Annual Reorganization Meeting of the board of directors following the annual meeting of the shareholders, appoint
or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one or more Vice Presidents however denominated,
a Corporate Secretary, a Treasurer, a Chief Auditor, and such other officers as it may determine. At the Annual Reorganization
Meeting, the board of directors shall also elect or reelect all of the officers of the association to hold office until the next
Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the officers of the association may be elected
as follows and shall hold office until the next Annual Reorganization meeting unless otherwise determined by the board of directors
or such authorized officer(s): The head of the Human Resources Department of M&T Bank or his or her designee or designees, may
appoint officers up to and including the rank of Senior Executive Vice President, including (without limitation as to title or
number) one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers and Assistant Auditors, and any other officer positions as they deem necessary and appropriate,
except for any “SEC-Reporting Officers” of M&T Bank Corporation for purposes of Section 16 of the Securities
Exchange Act of 1934, as such officers may only be appointed by the Board of Directors.
Section 2. Chairperson of the Board. The board of directors
shall appoint one of its members to be the chairperson of the board to serve at its pleasure. Such person shall preside at all meetings
of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted or approved by the board
of directors; shall have general executive powers, as well as the specific powers conferred by these bylaws; and shall also have and may
exercise such further powers and duties as from time to time may be conferred upon or assigned by the board of directors.
Section 3. President. The board of directors shall appoint
one of its members to be the president of the association. In the absence of the chairperson, the president shall preside at any meeting
of the board of directors. The president shall have general executive powers and shall have and may exercise any and all other powers
and duties pertaining by law, regulation, or practice to the office of president, or imposed by these bylaws. The president shall also
have and may exercise such further powers and duties as from time to time may be conferred or assigned by the board of directors.
Section 4. Vice President. The board of directors may appoint
one or more vice presidents. Each vice president shall have such powers and duties as may be assigned by the board of directors. One vice
president shall be designated by the board of directors, in the absence of the president, to perform all the duties of the president.
Section 5. Secretary. The board of directors shall appoint
a secretary, treasurer, or other designated officer who shall be secretary of the board of directors and of the association and who shall
keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these bylaws; shall be custodian
of the corporate seal, records, documents and papers of the association; shall provide for the keeping of proper records of all transactions
of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office
of treasurer, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the board
of directors.
Section 6. Other Officers. The board of directors may appoint
one or more assistant vice presidents, one or more trust officers, one or more officers, one or more assistant secretaries, one or more
assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time
to time may appear to the board of directors to be required or desirable to transact the business of the association. Such officers shall
respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned
to them by the board of directors, the chairperson of the board, or the president. The board of directors may authorize an officer to
appoint one or more officers or assistant officers.
Section 7. Tenure of Office. The president and all other
officers shall hold office for the current year for which the board of directors was elected, unless they shall resign, become disqualified,
or be removed; and any vacancy occurring in the office of president shall be filled promptly by the board of directors.
Section 8. Resignation. An officer may resign at any time
by delivering notice to the association. A resignation is effective when the notice is given unless the notice specifies a later effective
date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee. There shall be a Trust
Audit Committee composed of not less than 2 directors, appointed by the board of directors, which shall, at least once during each calendar
year make suitable audits of the association’s fiduciary activities or cause suitable audits to be made by auditors responsible
only to the board, and at such time shall ascertain whether fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers
of the bank or an affiliate who participate significantly in the administration of the bank’s fiduciary activities; and (2) must
consist of a majority of members who are not also members of any committee to which the board of directors has delegated power to manage
and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section
1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit
committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There shall be maintained by
the association all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 3. Trust Investments. Funds held in a fiduciary
capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable law. Where such instrument
does not specify the character and class of investments to be made, but does vest in the association investment discretion, funds held
pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law.
ARTICLE VI
Stock and Stock Certificates
Section 1. Transfers. Shares of stock shall be
transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Every person becoming a shareholder by such transfer shall in proportion to such shareholder's shares, succeed to all rights of the
prior holder of such shares. The board of directors may impose conditions upon the transfer of the stock reasonably calculated to
simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to
protect it against fraudulent transfers.
Section 2. Stock Certificates. Certificates of stock shall
bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually or by facsimile process
by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board of directors for that
purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite
on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost,
stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial
owner of shares that are registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may
set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in
such form as may be determined from time to time by the board of directors. The president, the treasurer, the secretary or any assistant
treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall have authority to affix the corporate
seal to any document requiring such seal and to attest the same. The seal on any corporate obligation for the payment of money may be
facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association
shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions,
schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged,
verified, delivered or accepted on behalf of the association by any officer elected or appointed pursuant to Article IV of these
bylaws. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such
other manner and by such other officers as the board of directors may from time to time direct. The provisions of this section 2 are supplementary
to any other provision of these bylaws.
Section 3. Records. The articles of association, the bylaws
and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of the board of directors shall
be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed by the secretary, treasurer
or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures.
To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices, the association
may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect
to matters of corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5
of Article VIII, the term “institution-affiliated party” shall mean any institution-affiliated party of the association
as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or
administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened,
pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative,
in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative
proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is
assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the
association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with
respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next
succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses,
including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with
an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators)
only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his
or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by
the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of
directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the
institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits,
(b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial
capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and
fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an
undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such
advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty,
(ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is
required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the
association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or
administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of
association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of
an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or
administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors or
administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the
board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum
is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the
stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct
provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors
are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board
may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have
been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may
rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are
named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent
legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions
have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of
indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with
respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment
of these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law
in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be
enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs,
executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided
in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated
party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s
articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing
such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing,
the rights of indemnification and to the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights,
pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any
such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and
expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall
be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary
to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board
of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in
these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against
such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association,
with all amendments, shall at all times be kept in a convenient place at the main office of the association, and shall be open for inspection
to all shareholders during banking hours.
Section 2. Amendments. The bylaws of the association may
be amended, altered or repealed, at any regular meeting of the board of directors, by a vote of a majority of the total number of the
directors except as provided below, and provided that the following language accompany any such change.
I, ,
certify that: (1) I am the duly constituted (secretary or treasurer)
of and secretary of its board of directors, and
as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association, and all
of them are now lawfully in force and effect.
I have hereunto affixed my official signature
on this day of .
(Secretary or Treasurer)
The association's shareholders may amend or repeal the bylaws even
though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| |
WILMINGTON TRUST, NATIONAL ASSOCIATION |
| |
|
|
| Dated: August 22, 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 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
¨ Check
if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address and telephone number of agent for
service)
The First Bancshares, Inc.
|
(Exact name of obligor as specified in its
charter) |
| |
| Mississippi |
64-0862173 |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
6480 U.S. Highway 98 West
Hattiesburg, Mississippi 39402
(Address of principal executive offices, including
zip code)
Subordinated Debt Securities
(Title of the indenture securities)
| ITEM 1. | GENERAL INFORMATION. |
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| | | |
| | | Comptroller of Currency, Washington, D.C. |
| | | Federal Deposit Insurance Corporation, Washington, D.C. |
| (b) | Whether it is authorized to exercise corporate trust powers. |
| | | The trustee is authorized to exercise corporate trust
powers. |
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records of the
trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not applicable.
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed
as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National
Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated
herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 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. |
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 22nd 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. |
| 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 22,
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
| ASSETS |
|
|
Thousands of Dollars |
|
| 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 |
|
| LIABILITIES |
|
|
Thousands of Dollars |
|
| 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 |
|
| EQUITY CAPITAL |
|
|
Thousands of Dollars |
|
| Common Stock |
|
|
1,000 |
|
| Surplus |
|
|
342,783 |
|
| Retained Earnings |
|
|
395,647 |
|
| Accumulated other comprehensive income |
|
|
(423 |
) |
| Total Equity Capital |
|
|
739,007 |
|
| Total Liabilities and Equity Capital |
|
|
826,814 |
|
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
The First Bancshares, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering Price
Per Unit (2) |
Maximum
Aggregate
Offering Price
(3) |
Fee Rate (4) |
Amount
of
Registration
Fee (5) |
| Newly Registered Securities |
| Fees to Be Paid |
Equity |
Common
Stock, $1.00 par value |
Rule
457(o) |
|
|
|
|
|
| Equity |
Preferred Stock,
$1.00 par value |
Rule 457(o) |
|
|
|
|
|
| Debt |
Debt Securities
(6) |
Rule 457(o) |
|
|
|
|
|
| Other |
Depositary Shares |
Rule 457(o) |
|
|
|
|
|
| Other |
Purchase Contracts |
Rule 457(o) |
|
|
|
|
|
| Other |
Units |
Rule 457(o) |
|
|
|
|
|
| |
Other |
Warrants |
Rule
457(o) |
|
|
|
|
|
| |
Other |
Rights |
Rule
457(o) |
|
|
|
|
|
| |
Unallocated (Universal Shelf) |
Unallocated (Universal Shelf) |
Rule
457(o) |
(1) |
(2) |
$300,000,000 |
0.00011020 |
$33,060 |
| Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
| Carry Forward Securities |
| Carry Forward Securities |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Total Offering Amounts |
|
$300,000,000 |
0.00011020 |
$33,060 |
| |
Total Fees Previously Paid |
|
— |
|
$0 |
| |
Total Fee Offsets |
|
— |
|
$0 |
| |
Net Fee Due |
|
— |
|
$33,060 |
(1) An
unspecified aggregate initial offering price and number of securities of each identified class is being registered as may from time to
time be offered at unspecified prices. Also includes an indeterminate number of shares of common stock, preferred stock, depositary shares,
purchase contracts, units, warrants and rights, and such indeterminate principal amount of senior debt securities and subordinated debt
securities as may be issued by the registrant upon exercise, conversion or exchange of any securities that provide for such issuance,
or that may from time to time become issuable by reason of any stock split, stock dividend or similar transaction, for which no separate
consideration will be received by registrant. In no event will the aggregate offering price of all types of securities issued by the registrant
pursuant to this registration statement exceed $300,000,000. Any securities registered hereunder may be sold separately or together with
other securities registered hereunder. Includes an indeterminate number of depositary shares evidenced by depositary receipts as may be
issued in the event that The First Bancshares, Inc. elects to offer fractional interests in its preferred stock registered hereby.
Pursuant to Rule 457(n), no additional registration fee is payable in respect of the registration of the guarantee.
(2) The
proposed maximum offering price per unit of security will be determined by The First Bancshares, Inc., from time to time, in connection
with the issuance by the registrant of the securities registered hereunder and has been omitted pursuant to General Instruction II.D
of Form S-3 under the Securities Act of 1933.
(3) The
proposed maximum aggregate offering price per class of security will be determined from time to time by The First Bancshares, Inc.
in connection with the issuance by The First Bancshares, Inc. of the securities registered hereunder and has been omitted pursuant
to General Instruction II.D of Form S-3 under the Securities Act of 1933.
(4) Estimated
for the sole purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
(5) Calculated
pursuant to Rule 457(o) of the Securities Act of 1933.
(6) May consist
of one or more series of senior or subordinated debt.
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