As
filed with the Securities and Exchange Commission on May 17, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIMMONS
FIRST NATIONAL CORPORATION
(Exact
name of registrant as specified in its charter)
Arkansas
(State
or other jurisdiction of
incorporation
or organization) |
71-0407808
(I.R.S.
Employer
Identification
Number) |
501
Main Street
Pine
Bluff, Arkansas 71601
(870)
541-1000
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Robert
A. Fehlman
Chief
Executive Officer
Simmons
First National Corporation
501
Main Street
Pine
Bluff, Arkansas 71601
(870)
541-1000
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
With
copies to:
George
A. Makris III
Executive
Vice President,
General
Counsel and Secretary
Simmons
First National Corporation
601
East 3rd Street, 12th Floor
Little
Rock, Arkansas 72201
(870)
541-1000 |
|
Michael
P. Reed
Charlotte
May
Covington
& Burling LLP
The
New York Times Building
620
Eighth Avenue
New
York, New York 10018
(212)
841-1000 |
Approximate
date of commencement of proposed sale to the public: From time to time after this registration
statement becomes effective.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
o
If any of the
securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following
box. þ
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. o
If this Form
is a post-effective amendment filed pursuant to Rule 462(c) 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. o
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. þ
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. o
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer þ |
|
|
Accelerated
filer o |
| Non-accelerated
filer o (Do not check if a smaller reporting
company) |
Small
reporting company o |
| |
|
|
Emerging
growth company o |
| |
|
|
|
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 Securities Act. o
PROSPECTUS
Class
A Common Stock
Preferred
Stock
Debt
Securities
Depositary
Shares
Warrants
Purchase
Contracts
Subscription
Rights
Units
We may offer
and sell from time to time, together or separately, in one or more offerings, any combination of the securities listed above. The securities
we may offer may be convertible into or exchangeable for other securities. The securities listed above may be offered by us and/or may
be offered and sold, from time to time, by one or more selling shareholders to be identified in the future. Each time we offer any securities
pursuant to this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms
of the securities being offered. You should read this prospectus, the information incorporated by reference in this prospectus, the accompanying
prospectus supplement, including any information incorporated by reference therein, and any free writing prospectus carefully before
you invest in the securities described in the applicable prospectus supplement.
Our common stock
is listed on the Nasdaq Global Select Market and trades under the ticker symbol “SFNC.”
We may offer
and sell these securities to or through one or more underwriters, dealers and agents, directly to purchasers or through a combination
of these methods, on a continuous or delayed basis from time to time. The names of any underwriters, dealers or agents involved in the
distribution of our securities, their compensation and any option they hold to acquire additional securities will be described in the
applicable prospectus supplement. Net proceeds from the sale of securities will be set forth in the applicable prospectus supplement.
This prospectus may
not be used to sell securities unless accompanied by the applicable prospectus supplement.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 4 of this prospectus and contained
in our Annual Report on Form 10-K
for the year ended December 31, 2023, which is incorporated herein by reference, as well as any risk factors included in, or incorporated
by reference into, the applicable prospectus supplement, to read about factors you should consider before buying any securities issued
by us.
These securities
are not savings accounts, deposits or other obligations of any of our bank and non-bank subsidiaries and are not insured or guaranteed
by the Federal Deposit Insurance Corporation or any other government agency.
Neither the U.S.
Securities and Exchange Commission, any state securities commission, the Federal Deposit Insurance Corporation, the Board of Governors
of the Federal Reserve System nor any other regulatory body has approved or disapproved of these securities or determined if this prospectus
is accurate or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is May 17, 2024.
TABLE
OF CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus
is part of an automatic shelf registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, as a
“well-known seasoned issuer,” as defined under Rule 405 under the Securities Act of 1933, as amended, or the Securities Act.
Under this shelf registration statement, we may offer and sell from time to time any combination of our Class A common stock, which we
refer to as our common stock, preferred stock, senior debt securities, subordinated debt securities, depositary shares, warrants, purchase
contracts, subscription rights and units in one or more offerings up to an indeterminate total dollar amount. The preferred stock, debt
securities, warrants, purchase contracts, subscription rights and units may be convertible into or exercisable or exchangeable for common
or preferred stock or other securities issued by us or debt or equity securities issued by one or more other entities.
Each time we
offer and sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement together with the additional information described under the heading “Where You Can Find More
Information.” We may also prepare free writing prospectuses that describe particular securities. Any free writing prospectus should
also be read in connection with this prospectus and with any prospectus supplement referred to therein. For purposes of this prospectus,
any reference to an applicable prospectus supplement may also refer to a free writing prospectus, unless the context otherwise requires.
Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “we,” “our,”
“us,” “ourselves,” and “the Company” refer to Simmons First National Corporation, an Arkansas corporation,
and its consolidated subsidiaries.
The registration
statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about
us and the securities offered under this prospectus. The registration statement can be read at the SEC website mentioned under the heading
“Where You Can Find More Information.”
The distribution
of this prospectus and any applicable prospectus supplement and the offering of the securities in certain jurisdictions may be restricted
by law. Persons into whose possession this prospectus and any applicable prospectus supplement come should inform themselves about and
observe any such restrictions. This prospectus and any applicable prospectus supplement do not constitute, and may not be used in connection
with, an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual,
quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the
SEC’s website at www.sec.gov.
The SEC allows
us to “incorporate by reference” into this prospectus the information in documents we file with the SEC, which means that
we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered
to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have
been incorporated by reference, by making future filings with the SEC, the information incorporated by reference in this prospectus is
considered to be automatically updated and superseded. In other words, in all cases, if you are considering whether to rely on information
contained in this prospectus or information incorporated by reference into this prospectus, you should rely on the information contained
in the document that was filed later. We incorporate by reference the documents listed below (File No. 000-06253), which are considered
to be a part of this prospectus:
| · | our
Current Reports on Form 8-K filed on January 3, 2024, January 8, 2024, January 24, 2024 (only
with respect to Item 8.01 thereof), January 26, 2024, March 1, 2024, March 14, 2024
and April 26, 2024; and |
All reports and
other documents we subsequently file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or
the Exchange Act, until our offering is completed will also be incorporated by reference into this prospectus and deemed to be part hereof
(other than any information furnished to, rather than filed with, the SEC, unless expressly stated otherwise therein). The most recent
information that we file with the SEC automatically updates and supersedes older information.
Any documents
incorporated by reference into this prospectus are available without charge to you on the Internet at www.simmonsbank.com or by contacting
our Investor Relations officer at Simmons First National Corporation, P.O. Box 7009, Pine Bluff, Arkansas 71611, Attention: Ed Bilek,
(870) 541-1000. The reference to our website is not intended to be an active link and the information on our website is not, and you
must not consider the information to be, a part of this prospectus.
You
should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement.
Neither we nor any underwriter or agent have authorized anyone else to provide you with additional or different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in jurisdictions
where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement or
any document incorporated by reference is accurate as of any date other than the dates of the applicable documents.
THE COMPANY
Simmons First
National Corporation, an Arkansas corporation organized in 1968, is a financial holding company registered under the Bank Holding Company
Act of 1956, as amended. We are headquartered in Pine Bluff, Arkansas, and had total consolidated assets of $27.4 billion, total
consolidated loans of $17.0 billion, total consolidated deposits of $22.4 billion and equity capital of $3.4 billion, each
as of March 31, 2024. Through our subsidiaries, we provide banking and other financial products and services in markets located
in Arkansas, Kansas, Missouri, Oklahoma, Tennessee and Texas.
We seek
to build shareholder value by, among other things, focusing on strong asset quality, maintaining strong capital, managing our liquidity
position, improving our operational efficiency and opportunistically growing our business, both organically and through mergers with
and acquisitions of other financial institutions. Our
business philosophy centers on building strong, deep customer relationships through excellent customer service and integrity in our operations.
While we have grown in recent years into a regional financial institution and one of the largest bank/financial holding companies
headquartered in the State of Arkansas, we continue to emphasize, where practicable, a community-based mindset focused
on local associates responding to local banking needs and making business decisions in the markets they serve. Those efforts, though,
are buttressed by experienced, centralized support functions in select, critical areas.
Our common
stock is traded on the Nasdaq Global Select Market under the symbol “SFNC.” Our principal executive offices are located at
501 Main Street, Pine Bluff, Arkansas 71601, and our telephone number is (870) 541-1000. We also have corporate offices in Little Rock,
Arkansas.
Additional
information about us and our subsidiaries is included in documents incorporated by reference in this prospectus. See “Where You
Can Find More Information.”
RISK FACTORS
Investing in
securities issued by us involves certain risks. Before you invest in any securities issued by us, in addition to the other information
included in, or incorporated by reference into, this prospectus, you should carefully consider the risk factors contained in Part I,
Item 1A under the caption “Risk Factors” and elsewhere in our Annual Report on Form 10-K for the year ended December 31, 2023, which is incorporated by reference into this prospectus, as updated by our annual or quarterly reports for subsequent fiscal years
or fiscal quarters that we file with the SEC and that are so incorporated. See “Where You Can Find More Information” for
information about how to obtain a copy of these documents. You should also carefully consider the risks and other information that may
be contained in, or incorporated by reference into, any prospectus supplement relating to specific offerings of securities.
USE OF PROCEEDS
We intend to
use the net proceeds from the sales of the securities in the manner and for the purposes set forth in the applicable prospectus supplement,
which may include general corporate purposes.
LEGAL MATTERS
Unless otherwise
indicated in the applicable prospectus supplement, the validity of the securities will be passed upon for us by Friday, Eldredge &
Clark LLP, Little Rock, Arkansas and Covington & Burling LLP, New York, New York. Friday, Eldredge & Clark LLP and Covington
& Burling LLP regularly perform legal services for us. Certain legal matters will be passed upon for any underwriters, dealers
or agents by the counsel to such underwriters specified in the applicable prospectus supplement.
EXPERTS
The
audited annual consolidated financial statements of the Company appearing in our Annual Report on Form 10-K for the year ended December
31, 2023 and the effectiveness of our internal control over financial reporting as of such date have been audited by FORVIS, LLP, an
independent registered public accounting firm, as set forth in its reports included therein, which are incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such
firm as experts in auditing and accounting.
With
respect to the unaudited interim consolidated financial information of the Company appearing in our Quarterly Report on Form 10-Q for
the period ended March 31, 2024, which is incorporated herein by reference, FORVIS, LLP has applied limited procedures in accordance
with professional standards for review of such information. However, as stated in its separate report included therein, FORVIS, LLP did
not audit and it does not express an opinion on that interim financial information. Because of the limited nature of the review procedures
applied, the degree of reliance on its reports on such information should be restricted. Pursuant to Rule 436(c) under the Securities
Act, this report on the Company's unaudited interim consolidated financial information should not be considered a part of the registration
statement prepared or certified by its independent registered public accounting firm within the meaning of Sections 7 and 11 of the Securities
Act.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
The following
table sets forth the various expenses payable by us in connection with the sale and distribution of the securities being registered hereby.
| |
Amount
to be paid | |
| SEC registration fee | |
$ | | (1) |
| Legal fees and expenses | |
| | (2) |
| Accounting fees and expenses | |
| | (2) |
| Printing fees | |
| | (2) |
| Trustee and depositary fees and
expenses | |
| | (2) |
| Blue sky fees and expenses | |
| | (2) |
| Rating agency fees | |
| | (2) |
| Listing fees and expenses | |
| | (2) |
| Miscellaneous | |
| | (2) |
| Total | |
$ | | (2) |
| (1) |
In
accordance with Rule 456(b) and Rule 457(r) under the Securities Act, the registrant is deferring payment of the registration fee associated
with this registration statement. The registration fee will be paid at the time of any offering of securities under this registration
statement and is therefore not determinable. |
| |
|
| (2) |
Because an indeterminate
amount of securities is covered by this registration statement, the expenses incurred in connection with the issuance and distribution
of such securities are not currently determinable. The estimate of such expenses incurred in connection with securities to be offered
and sold pursuant to this registration statement will be included in the applicable prospectus supplement. |
Item 15. Indemnification of
Directors and Officers.
Article Twelfth
of the Company’s Amended and Restated Articles of Incorporation, as amended, or the Articles, provides that the Company shall,
to the fullest extent permitted by the Arkansas Business Corporation Act of 1987, as amended, indemnify all persons whom the Company
may indemnify pursuant thereto. Arkansas Code Annotated Section 4-27-850 permits a corporation, under specified circumstances, to
indemnify its current and former directors, officers, employees or agents against expenses (including attorney’s fees), judgments,
fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought
by third parties by reason of the fact that the directors, officers, employees or agents acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had
no reason to believe their conduct was unlawful. In a derivative action, i.e.,
one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors,
officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as
to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless
and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors,
officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
The Articles specify that the indemnification rights granted thereunder are enforceable contract rights which are not exclusive of any
other indemnification rights that the director or officer may have under any by-law, vote of shareholders or disinterested directors
or otherwise.
The Articles
also provide that expenses incurred by a director or officer in defending a civil or criminal lawsuit or proceeding arising out of actions
taken in his official capacity, or in certain other capacities, will be paid by the Company in advance of the final disposition of the
matter upon the approval of (i) the Company’s board of directors by a majority vote of a quorum consisting of directors who are
not parties to the proceeding, (ii) if such a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors
so directs, then by independent legal counsel in a written opinion, or (iii) the shareholders, and upon receipt of an undertaking from
the director or officer to repay the sum advanced if it is ultimately determined that he is not entitled to be indemnified by the Company
pursuant to applicable provisions of Arkansas law.
As permitted
under Arkansas law, the Articles also authorize the purchase of directors’ and officers’ insurance for the benefit of its
past and present directors and officers, irrespective of whether the Company has the power to indemnify such persons under Arkansas law.
The Company currently maintains insurance as authorized by these provisions.
Article VIII
of the Company’s Amended and Restated By-Laws contains indemnification provisions substantially similar to those contained in the
Articles.
In addition to
the above, the Company has entered into customary indemnification agreements with its directors and officers. Pursuant to such agreements,
the Company has agreed to indemnify the directors and officers to the fullest extent permitted by the laws of the State of Arkansas,
if he or she is a party or is threatened to be made a party to, or is involved in, any action, suit or proceeding by reason of the fact
that he or she is or was a director, officer, employee or agent of the Company (or was serving in a similar capacity at the Company’s
request). In addition, the Company has agreed to advance expenses incurred in defending any such action, suit or proceeding, on the terms
and subject to the conditions set forth in the indemnification agreements.
Item
16. Exhibits
|
Exhibit
Number |
|
Description |
| 1.1 |
|
Form of Underwriting Agreement.* |
| 3.1 |
|
Amended and Restated Articles of Incorporation of Simmons First National Corporation, as amended on July 14, 2021 (incorporated by reference to Exhibit 3.1 to Simmons First National Corporation’s Registration Statement on Form S-4 filed on July 21, 2021 (File No. 333-258059)). |
| 3.2 |
|
Articles of Amendment to the Amended and Restated Articles of Incorporation of Simmons First National Corporation, dated August 3, 2022 (incorporated by reference to Exhibit 3.2 to Simmons First National Corporation’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 (File No. 000-06253)). |
| 3.3 |
|
Amended and Restated By-Laws of Simmons First National Corporation, as amended and restated effective December 19, 2023 (incorporated by reference to Exhibit 3.1 to Simmons First National Corporation’s Current Report on Form 8-K filed on December 26, 2023 (File No. 000-06253)). |
| 4.1 |
|
Specimen Common Stock Certificate of Simmons First National Corporation (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to Simmons First National Corporation’s Registration Statement on Form S-3 filed on June 18, 2014 (File No. 333-194309)) |
| 4.2 |
|
Form of Preferred Stock Certificate.* |
| 4.3 |
|
Form
of Senior Indenture between Simmons First National Corporation and Wilmington Trust, National Association (incorporated by
reference to Exhibit 4.3 to Simmons First National Corporation’s Registration Statement on Form S-3 filed on March 19, 2018
(File No. 333-223764)). |
| 4.4 |
|
Subordinated Indenture, dated as of March 26, 2018, between Simmons First National Corporation and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.1 to Simmons First National Corporation’s Current Report on Form 8-K filed on March 26, 2018 (File No. 000-06253)). |
| 4.5 |
|
Form of Senior Debt Security.* |
| 4.6 |
|
Form of Subordinated Debt Security (included in Exhibit 4.4). |
| 4.7 |
|
Form of Depositary Agreement and Certificate.* |
| 4.8 |
|
Form of Warrant Agreement and Certificate.* |
| 4.9 |
|
Form of Purchase Contract Agreement.* |
| 4.10 |
|
Form of Subscription Rights (including form of Subscription Rights Certificate).* |
| 4.11 |
|
Form of Unit Agreement and Unit Certificate.* |
| 5.1 |
|
Opinion of Friday, Eldredge & Clark LLP. |
| 5.2 |
|
Opinion of Covington & Burling LLP. |
| 15.1 |
|
Awareness Letter of FORVIS, LLP with respect
to the interim financial statements of Simmons First National Corporation. |
| 23.1 |
|
Consent of FORVIS, LLP with respect to the audited financial statements of Simmons First National Corporation. |
| 23.2 |
|
Consent of Friday, Eldredge & Clark LLP (included in Exhibit 5.1). |
| 23.3 |
|
Consent of Covington & Burling LLP (included in Exhibit 5.2). |
| 24.1 |
|
Powers of attorney (included on the signature pages herewith). |
| 25.1 |
|
Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, for the Senior Indenture. |
| 25.2 |
|
Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, for the Subordinated Indenture. |
| 107 |
|
Filing Fee Table. |
| * |
To be filed by amendment or as an exhibit to a report filed pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided,
however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply
if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for 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) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by such
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the U.S.
Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pine Bluff, State of Arkansas, on May 17, 2024.
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SIMMONS
FIRST NATIONAL CORPORATION |
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By: |
/s/
Robert A. Fehlman |
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Name:
Robert A. Fehlman |
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Title: Chief Executive Officer |
POWER OF
ATTORNEY
KNOW ALL MEN
BY THESE PRESENTS, that each of the persons whose signature appears below appoints and constitutes George A. Makris, III and Charles
D. Hobbs, and each of them, his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute any and all amendments
(including post-effective amendments) to the within registration statement (as well as any registration statement for the same offering
covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933),
and to file the same, together with all exhibits thereto and all other documents in connection therewith, with the U.S. Securities and
Exchange Commission and such other agencies, offices and persons as may be required by applicable law, granting unto each said attorney-in-fact
and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done
in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that each said attorney-in-fact and agent, each acting alone may lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated
on May 17, 2024.
| Signature |
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Title |
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| /s/ George A. Makris, Jr. |
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Executive Chairman and Director |
| George A. Makris, Jr. |
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| /s/ Robert A. Fehlman |
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Chief Executive Officer |
| Robert A. Fehlman |
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| (Principal Executive Officer) |
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| /s/ Charles D. Hobbs |
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Executive Vice President and Chief Financial Officer |
| Charles D. Hobbs |
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| (Principal Financial Officer) |
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| /s/ David W. Garner |
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Executive Vice President and Chief Accounting Officer |
| David W. Garner |
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| (Principal Accounting Officer) |
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| /s/ Marty D. Casteel |
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Director |
| Marty D. Casteel |
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| /s/ William E. Clark, II |
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Director |
| William E. Clark, II |
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| /s/ Mark C. Doramus |
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Director |
| Mark C. Doramus |
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| /s/ Edward Drilling |
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Director |
| Edward Drilling |
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| /s/ Eugene Hunt |
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Director |
| Eugene Hunt |
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| /s/ Jerry M. Hunter |
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Director |
| Jerry M. Hunter |
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| /s/ Susan S. Lanigan |
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Director |
| Susan S. Lanigan |
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| /s/ Thomas Purvis |
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Director |
| Thomas Purvis |
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| /s/ Robert L. Shoptaw |
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Director |
| Robert L. Shoptaw |
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| /s/ Julie Stackhouse |
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Director |
| Julie Stackhouse |
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| /s/ Russell W. Teubner |
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Director |
| Russell W. Teubner |
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| /s/ Malynda K. West |
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Director |
| Malynda K. West |
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Exhibit 5.1
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400 West Capitol Avenue
Suite 2000
Little Rock, Arkansas 72201-3522
www.FridayFirm.com |
May 17, 2024
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Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
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| Re: |
Registration Statement on Form S-3 – Simmons First National Corporation |
Ladies and Gentlemen:
Friday, Eldredge & Clark LLP
is, at the request of George A. Makris III, Executive Vice President, General Counsel and Secretary of Simmons First National Corporation,
an Arkansas corporation (the “Company”), acting as special counsel in connection with the registration by the Company under
the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale by the Company from time to time
of an unlimited number or dollar or foreign currency amount of: (i) shares of the Company’s Class A common stock, par value $0.01
per share (the “Common Stock”); (ii) shares of the Company’s preferred stock, par value $0.01 per share (the
“Preferred Stock”); (iii) debt securities, which may be either senior or subordinated and may be issued in one or more
series (the “Debt Securities”), such subordinated debt securities to be issued under a Subordinated Indenture, dated
as of March 26, 2018 (the “Subordinated Indenture”), between the Company and Wilmington Trust, National Association,
as trustee; (iv) depositary shares, representing a fractional interest in a share of Preferred Stock and evidenced by a depositary receipt
(the “Depositary Shares”); (v) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”);
(vi) purchase contracts, pursuant to which the holder will purchase from the Company a specified number of shares of Common Stock or Preferred
Stock or a specified number of Debt Securities at a future date (the “Purchase Contracts”); (vii) rights to subscribe
for and to purchase Common Stock, Preferred Stock or Debt Securities (the “Subscription Rights”) and (viii) units comprised
of any combination of Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts or Subscription
Rights (the “Units” and, collectively with the Debt Securities, Depositary Shares, Warrants, Purchase Contracts and
Subscription Rights, the “Covered Securities”), pursuant to the Company’s registration statement on Form S-3
(the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”)
on the date hereof. The Covered Securities, together with the Common Stock and the Preferred Stock, are collectively referred to herein
as the “Securities.”
Simmons First National Corporation
May 17, 2024
Page 2
In connection with our engagement
we examined the Company’s Amended and Restated Articles of Incorporation, as amended by those certain Articles of Amendment, dated
August 3, 2022 (the “Articles”), and Amended and Restated By-laws (the “By-laws”), the Registration Statement
and the corporate proceedings taken by the Company relating to the filing of the Registration Statement and the transactions contemplated
thereby. We also examined originals or copies, certified or otherwise identified to my or their satisfaction, of such documents, corporate
records, instruments and other relevant materials deemed advisable and examined statutes and decisions and reviewed such questions of
law as we considered necessary or appropriate. As to facts material to this letter, we relied as to certain matters on information obtained
from public officials, officers of the Company and other sources believed to be responsible, without any independent verification thereof.
In our examination, we assumed:
(a) the legal capacity of all natural persons; (b) the genuineness of all signatures; (c) the authenticity of all documents submitted
to me as originals; (d) the conformity to original documents of all documents submitted to me as certified, conformed, photostatic or
facsimile copies; (e) the authenticity of the originals of such latter documents; (f) the truth, accuracy and completeness of the information,
representations and warranties contained in the records, documents, instruments, certificates and records reviewed; and (g) the absence
of any undisclosed modifications to the agreements and instruments we reviewed.
Based on the foregoing, and subject
to assumptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The
Company is duly organized and validly existing as an Arkansas corporation and possesses the requisite corporate power and authority to
execute, deliver and perform its obligations under the Covered Securities.
2. With
respect to any offering of Common Stock, including Common Stock issuable upon the exercise, exchange or conversion of Preferred Stock
or the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Common Stock has been
filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the Company has taken all
corporate action necessary to authorize and approve the issuance of the Common Stock; (iii) any legally required consents, approvals or
authorizations have been obtained; (iv) unless issued without certificates, certificates representing the Common Stock have been duly
executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered to the purchasers
thereof or other persons entitled thereto; (v) the Common Stock has been issued by the Company against payment of the agreed-upon consideration
therefor in accordance with any relevant agreements and such corporate action; and (vi) in the case of Common Stock issuable upon conversion
of Preferred Stock or Covered Securities, the actions in respect of such Preferred Stock referred to in paragraph 3 or Covered Securities
referred to in paragraph 4 hereof have been completed, then, upon the happening of such events, such Common Stock will be validly issued,
fully paid and nonassessable.
Simmons First National Corporation
May 17, 2024
Page 3
3. With
respect to any offering of any series of Preferred Stock, including any Preferred Stock issuable upon the exercise, exchange or conversion
of the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Preferred Stock has been
filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the Company has taken all
corporate action necessary to authorize the issuance of the Preferred Stock; (iii) the Articles of Amendment to the Articles establishing
the designations, preferences, rights, qualifications, limitations or restrictions of such series of Preferred Stock have been duly approved
by appropriate corporate action, executed by duly authorized officers of the Company and filed by the Company with the Arkansas Secretary
of State, all in accordance with the laws of the State of Arkansas; (iv) any legally required consents, approvals or authorizations have
been are obtained; (v) unless issued without certificates, certificates representing the Preferred Stock have been duly executed by the
duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered to the purchasers thereof or other
persons entitled thereto; (vi) the Preferred Stock with terms so fixed has been issued by the Company against payment of the agreed-upon
consideration therefor in accordance with any relevant agreements and such corporate action; and (vii) in the case of Preferred Stock
issuable upon conversion, exercise or exchange of Covered Securities, the actions in respect of such Covered Securities referred to in
paragraph 4 hereof have been completed, then, upon the happening of such events, the Preferred Stock will be validly issued, fully paid
and nonassessable.
4. With
respect to any offering of Covered Securities, if the Covered Securities are convertible, exercisable or exchangeable into Common Stock
or Preferred Stock, or if Common Stock or Preferred Stock may be acquired upon exercise, conversion or exchange upon fulfillment of the
terms of the Covered Securities, when (i) a prospectus supplement and any other offering material with respect to the Covered Securities
has been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder; (ii) the Company has
taken all corporate action necessary to authorize the issuance of such Covered Securities; (iii) the Articles of Amendment to the Articles
establishing the designations, preferences, rights, qualifications, limitations or restrictions of any series of Preferred Stock have
been duly approved by appropriate corporate action, executed by duly authorized officers of the Company and filed by the Company with
the Arkansas Secretary of State, all in accordance with the laws of the State of Arkansas; (iv) any legally required consents, approvals
or authorizations have been obtained; (v) the Covered Securities have been presented for conversion, exercise or exchange in accordance
with the terms thereof; and (vi) unless issued without certificates, certificates representing such Common Stock or Preferred Stock, as
applicable, have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered
upon such conversion, exercise or exchange to the persons entitled thereto, in accordance with the terms of such Covered Securities, then,
upon the happening of such events, the Common Stock or Preferred Stock issuable upon conversion, exercise or exchange of the Covered Securities
will be validly issued, fully paid and non-assessable.
5. The
Subordinated Indenture has been duly authorized, executed and delivered by the Company.
Simmons First National Corporation
May 17, 2024
Page 4
For the purposes of this letter,
we assumed that, at the time of the issuance, sale and delivery of each issue of Common Stock, Preferred Stock or Covered Securities:
(i) the Company remains validly existing as a corporation under Arkansas law; (ii) all Covered Securities will constitute valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent such assumption
states, directly or in practical effect, the legal conclusion expressed in paragraph 4 of this opinion letter; (iii) any Securities being
offered will be issued and sold as contemplated in the Registration Statement or the prospectus supplement relating thereto; (iv) all
actions necessary for the issuance of any Common Stock or Preferred Stock and the form and terms thereof will not (a) contravene the Articles
or By-laws, (b) violate any law, rule or regulation applicable to the Company or (c) result in any conflict with or breach of any agreement
or document binding on the Company; (v) the authorization of any Common Stock or Preferred Stock by the Company will not have been modified
or rescinded, and there will not have occurred any change in law affecting the issuance thereof; (vi) the Articles and the By-laws, as
currently in effect, will not have been modified or amended and will be in full force and effect, and the number of shares of Common Stock
or Preferred Stock, as the case may be, offered and sold will not exceed the number of shares of Common Stock or Preferred Stock, as the
case may be, authorized under the Articles and not otherwise reserved for issuance; and (vii) the certificates, if any, evidencing the
Common Stock or the Preferred Stock will be in a form approved for issuance by the Company, which complies with the Arkansas Business
Corporation Act of 1987.
In rendering the foregoing opinions,
we express no opinion with respect to the laws of any jurisdiction other than the laws of the State of Arkansas.
I am furnishing this letter to
you in connection with the filing of the Registration Statement. This letter is limited to the matters set forth herein, and no other
opinion should be inferred beyond the matters expressly stated. The opinions set forth herein are given as of the date hereof and we do
not undertake any obligation to update or supplement this letter if any applicable law changes after the date hereof or if we become aware
of any fact or other circumstances that changes or may change any opinion set forth herein after the date hereof or for any other reason.
We consent to the filing of this
letter as an exhibit to the Registration Statement and the reference to our name under the heading “Legal Matters” in the
prospectus constituting part of the Registration Statement, and in any supplement thereto or amendments thereof. In giving such consent,
we do not agree or admit we are within the category of persons whose consent is required under Section 7 of the Securities Act.
Simmons First National Corporation
May 17, 2024
Page 5
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Cordially yours, |
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/s/ Friday, Eldredge & Clark, LLP |
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Friday, Eldredge &
Clark, LLP |
PCG:jry
cc: George A. Makris III
Exhibit 5.2
May 17, 2024
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Ladies and Gentlemen:
We have acted
as special counsel to Simmons First National Corporation, an Arkansas corporation (the “Company”), in connection with
the registration by the Company under the Securities Act of 1933, as amended (the “Securities Act”), of the offer
and sale from time to time of (i) shares of the Company’s Class A common stock, par value $0.01 per share (the “Common
Stock”), (ii) shares of the Company’s preferred stock, par value $0.01 per share (the “Preferred Stock”),
(iii) debt securities, which may be either senior or subordinated and may be issued in one or more series (the “Debt Securities”),
such subordinated debt securities to be issued under the Subordinated Indenture, dated as of March 26, 2018 (the “Subordinated
Indenture”), between the Company and Wilmington Trust, National Association, as trustee (the “Subordinated Indenture
Trustee”), (iv) depositary shares, representing a fractional interest in a share of Preferred Stock and evidenced by a depositary
receipt (the “Depositary Shares”), (v) warrants to purchase Common Stock, Preferred Stock or any combination of these
securities (the “Warrants”), (vi) purchase contracts, pursuant to which the holder may purchase from the Company a
specified number of shares of Common Stock or Preferred Stock or a specified number of Debt Securities at a future date (the “Purchase
Contracts”); (vii) rights to subscribe for and to purchase Common Stock, Preferred Stock or Debt Securities (the “Subscription
Rights”) and (viii) units comprised of any combination of Common Stock, Preferred Stock, Debt Securities, Depositary Shares,
Warrants, Purchase Contracts or Subscription Rights (“Units” and, collectively with Debt Securities, Depositary Shares,
Warrants, Purchase Contracts and Subscription Rights, the “Covered Securities”), pursuant to the Company’s Registration
Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”)
on the date hereof.
We have reviewed
the Registration Statement, the Subordinated Indenture and such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the purposes of this opinion. We have assumed that all signatures
are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform
to the originals.
Simmons First National Corporation
May 17, 2024
Page 2
We have assumed
that, at the time of the issuance, sale and delivery of any Covered Securities: (i) the execution, delivery and performance by
the Company of the senior debt indenture in the form of Exhibit 4.3 to the Registration Statement and any supplemental indenture
thereto (collectively, the “Senior Indenture”), the Subordinated Indenture and any supplemental indenture thereto,
and any deposit agreement, warrant agreement, purchase contract agreement, subscription agreement or subscription rights certificate,
and unit agreement, as applicable (collectively, the “Documents”), and all actions necessary for the issuance of the
applicable Covered Securities, and the form and terms thereof, will comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any agreement or instrument to which the Company is a party or by which it is bound or any
court or other governmental or regulatory body having jurisdiction over the Company; and (ii) the Company will have duly authorized,
executed and delivered any such Document and will have duly authorized the issuance of any such Covered Security, none of such
authorizations will have been modified or rescinded, and there will not have occurred any change in law affecting the validity,
legally binding character or enforceability thereof.
We have
also assumed that the Covered Securities will be offered and sold in compliance with applicable federal and state securities laws and
in the manner stated in the Registration Statement and the appropriate prospectus supplement. We have assumed the Documents and any
Covered Securities issued pursuant thereto will be governed by and construed in accordance with the law of the State of New York.
With respect to any Document executed or to be executed by any party other than the Company, we have assumed that such party has, or
will have, duly authorized, executed and delivered the Documents to which it is a party and that each such Document is, or will be, the
valid and binding obligation of such party, enforceable against it in accordance with its terms.
We have
assumed further that the Company is duly organized, validly existing and in good standing under the law of the State of Arkansas and
has all requisite power, authority and legal right to execute, deliver and perform its obligations under the Covered Securities, the
Subordinated Indenture, and the Documents. With respect to all matters of Arkansas law, we note that you are relying on an opinion of
Friday, Eldredge & Clark LLP, dated as of the date hereof, which opinion is filed as Exhibit 5.1 to the Registration Statement.
Additionally,
we have relied as to certain matters on information obtained from public officials, officers of the Company and other sources
believed by us to be responsible.
Based upon the
foregoing, and subject to the qualifications set forth herein, we are of the opinion that, when, as and if:
Simmons First National Corporation
May 17, 2024
Page 3
1.
With respect to the Debt Securities: (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered
and filed as required by such laws; (ii) with respect to any senior debt securities, the Senior Indenture has been duly executed
and delivered on behalf of the Company and a trustee qualified to act as such under applicable law (the “Senior Indenture
Trustee”) and the Senior Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”); (iii) with respect to any subordinated debt securities, the Subordinated Indenture has been duly qualified
under the Trust Indenture Act; (iv) any necessary supplements to the Senior Indenture or the Subordinated Indenture, as applicable,
have been duly executed and delivered on behalf of the Company and the Senior Indenture Trustee or the Subordinated Indenture
Trustee, as applicable; (v) all necessary corporate action has been taken by the Company to authorize, execute and deliver any
necessary supplemental indenture and to authorize the form, terms, execution and delivery of the Debt Securities; (vi) any legally
required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities have been
obtained; (vii) any shares of Common Stock or Preferred Stock issuable upon the conversion or exchange of such Debt Securities,
as applicable, have been duly and validly authorized and reserved for issuance and sale; and (viii) the Debt Securities have been
duly executed by the Company and authenticated by the Senior Indenture Trustee in accordance with the Senior Indenture or the
Subordinated Indenture Trustee in accordance with the Subordinated Indenture and any applicable supplemental indenture, as applicable,
and have been duly issued and delivered against payment therefor in accordance with such corporate action and applicable law and
as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Debt Securities and
the plan of distribution, then, upon the happening of such events, such Debt Securities (including any Debt Securities to be issued
by the Company upon the conversion or exercise of other Covered Securities issued by the Company pursuant to the Registration
Statement) will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.
2.
With respect to the Depositary Shares: (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered
and filed as required by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and
deliver a deposit agreement and to authorize the form, terms, execution and delivery of the Depositary Shares and to fix or otherwise
determine the consideration to be received for the Depositary Shares and the terms of the offer and sale thereof; (iii) any legally
required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities have been
obtained; (iv) any shares of Preferred Stock underlying the Depositary Shares have been duly and validly authorized and validly
issued and are fully paid and non-assessable; and (v) the depositary receipts evidencing the Depositary Shares have been duly
executed and delivered by the depositary in accordance with the applicable deposit agreement and in accordance with such corporate
action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms
of the Depositary Shares and the plan of distribution, then, upon the happening of such events, the Depositary Shares will be
validly issued and will entitle the holders thereof to the rights specified in the deposit agreement, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
Simmons First National Corporation
May 17, 2024
Page 4
3.
With respect to the Warrants: (i) the Registration Statement and any required post-effective amendments thereto have all
become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed
as required by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver
a warrant agreement and to authorize the form, terms, execution and delivery of the Warrants and to fix or otherwise determine
the consideration to be received for the Warrants and the terms of the offer and sale thereof; (iii) any legally required consents,
approvals, authorizations and other orders of the Commission and any other regulatory authorities have been obtained; (iv) any
shares of Common Stock or Preferred Stock purchasable upon exercise of such Warrants, as applicable, have been duly and validly
authorized and reserved for issuance and sale; and (v) the Warrants have been duly executed and sold by the Company against payment
therefor in accordance with any applicable warrant agreement, and in accordance with such corporate action and applicable law
and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Warrants and the
plan of distribution, then, upon the happening of such events, the Warrants (including any Warrants to be issued by the Company
upon the conversion or exercise of other Covered Securities issued by the Company pursuant to the Registration Statement) will
constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
4.
With respect to the Purchase Contracts, (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered
and filed as required by such law; (ii) all necessary corporate action has been taken by the Company to authorize, execute, and
deliver a purchase contract agreement and to authorize the form, terms, execution and delivery of the Purchase Contracts and the
terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities have been obtained; (iv) any shares of Common Stock, Preferred Stock or Debt Securities to
be issued pursuant to such Purchase Contracts have been duly and validly authorized and, in the case of shares of Common Stock
or Preferred Stock, reserved for issuance and sale; and (v) the Purchase Contracts have been duly executed and sold by the Company
against payment therefor in accordance with any applicable purchase contract agreement, and in accordance with such corporate
action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms
of the Purchase Contracts and the plan of distribution, then, upon the happening of such events, the Purchase Contracts will constitute
the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
Simmons First National Corporation
May 17, 2024
Page 5
5.
With respect to the Subscription Rights: (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered
and filed as required by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and
deliver a subscription agreement or subscription rights certificate to the rights agent and to authorize the form, terms, execution
and delivery of the Subscription Rights and to fix or otherwise determine the consideration to be received for the Subscription
Rights and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders
of the Commission and any other regulatory authorities have been obtained; (iv) any shares of Common Stock, Preferred Stock or
Debt Securities purchasable upon exercise of such Subscription Rights, as applicable, have been duly and validly authorized and,
in the case of shares of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) the Subscription Rights have
been duly executed and sold by the Company against payment therefor in accordance with any applicable subscription agreement or
subscription rights certificate, and in accordance with such corporate action and applicable law as contemplated in the Registration
Statement and the prospectus supplement setting forth the terms of the Subscription Rights and the plan of distribution, then,
upon the happening of such events, the Subscription Rights will constitute the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
6.
With respect to the Units: (i) the Registration Statement and any required post-effective amendments thereto have all become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as
required by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a unit
agreement and to authorize the form, terms, execution and delivery of the Units and the terms of the offer and sale thereof; (iii)
any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities
have been obtained; (iv) any shares of Common Stock or Preferred Stock or any Debt Securities, Depositary Shares, Warrants, Purchase
Contracts or Subscription Rights to be issued pursuant to such Units, have been duly and validly authorized and, in the case of
shares of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) the Units have been duly executed and sold
by the Company against payment therefor in accordance with any applicable unit agreement, in accordance with such corporate action
and applicable law and as contemplated in the Registration Statement and the related prospectus supplement setting forth the terms
of the Units and the plan of distribution, then, upon the happening of such events, the Units will constitute the valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
Simmons First National Corporation
May 17, 2024
Page 6
Our opinions
above are qualified to the extent that the enforcement of any Covered Securities denominated in a currency other than United States
dollars may be limited by requirements that a claim (or a foreign currency judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law.
We express no
opinion as to (i) waivers of defenses, subrogation and related rights, rights to trial by jury, rights to object to venue, or
other rights or benefits bestowed by operation of law, (ii) releases or waivers of unmatured claims or rights, (iii) indemnification,
contribution, exculpation or arbitration provisions, or provisions for the non-survival of representations, to the extent they
purport to indemnify any party against, or release or limit any party’s liability for, its own breach or failure to comply
with statutory obligations, or to the extent such provisions are contrary to public policy or (iv) provisions for liquidated damages
and penalties, penalty interest and interest on interest.
We are members
of the bars of the District of Columbia and the State of New York. We do not express any opinion herein on any laws other than
the law of the State of New York.
We hereby consent
to the filing of this opinion as Exhibit 5.2 to the Registration Statement. We also hereby consent to the reference to our firm
under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act.
| |
Very
truly yours, |
| |
|
| |
/s/ Covington & Burling LLP |
Exhibit 15.1
Awareness of Independent Registered Public Accounting Firm
We acknowledge the incorporation by reference
in this Registration Statement on Form S-3 of Simmons First National Corporation (Company) of our report dated May 7, 2024 included
with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2024. Pursuant to Rule 436(c) under the Securities Act
of 1933, this report should not be considered part of the registration statement prepared or certified by us within the meaning of Section 7
and 11 of the Act.
/s/ FORVIS, LLP
FORVIS, LLP
Little Rock, Arkansas
May 17, 2024
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Simmons First National Corporation (the Company) of our report dated February 27, 2024, with respect to our audits of the
consolidated financial statements of the Company as of December 31, 2023 and 2022, and for each of the years in the three-year period
ended December 31, 2023, which report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
We also consent to the incorporation by reference of our report dated February 27, 2024, with respect to our audit of the internal control
over financial reporting of the Company as of December 31, 2023, which report was included in the Company’s Annual Report on Form
10-K for the year ended December 31, 2023. We also consent to the reference to our firm under the caption “Experts.”
/s/ FORVIS, LLP
FORVIS, LLP
Little Rock, Arkansas
May 17, 2024
Exhibit 25.1
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
T-1
o
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)
Simmons First
National Corporation
(Exact
name of obligor as specified in its charter) |
| Arkansas |
71-0407808 |
| (State
or other jurisdiction of incorporation or organization) |
(I.R.S.
Employer Identification No.) |
| |
|
501 Main Street
Pine Bluff, Arkansas 71601
(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 17th
day of May, 2024.
| |
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 7, 2024)
AMENDED
AND RESTATED BYLAWS OF
WILMINGTON
TRUST, NATIONAL ASSOCIATION
ARTICLE
I
Meetings
of Shareholders
Section 1. Annual
Meeting. The annual meeting of shareholders shall be held on such date and at such time as may be designated by the chair
of the Board of Directors, the chief executive officer, the president, the chief operating officer, the secretary, or the Board
of Directors for the purpose of the election of directors and for the transaction of such other business as may properly come
before the meeting, except such date shall not be a legal holiday in Delaware. 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 or her address appearing on the books of the association. If, for any cause, an election of directors is not made on that
date, 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. The chair of the Board of Directors, the president, the chief executive officer, the secretary, or the Board of
Directors may call a special meeting of the shareholders. A special meeting shall be called to act on any matter that may properly
be considered at a meeting of shareholders upon the written request of shareholders entitled to cast not less than a majority
of all the votes entitled to be cast on such matter at the meeting. 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.
Section 3. Adjournment.
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 4. Nominations
of Directors. Nominations for election to the Board of Directors may be made by the Board of Directors or by any shareholder
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, 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 chair of the meeting, and upon his/her instructions, all
votes cast for each such nominee may be disregarded.
Section 5. 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. A director or an attorney of the association may act as proxy for shareholders voting if
they are not also employed as an officer of the association. 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 6. 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, 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. 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
association 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. The Board of Directors may not increase the number of directors between meetings of shareholders to a number
which: (a) exceeds by more than 2 the number of directors last elected by shareholders where the number was 15 or less; or (b)
exceeds by more than 4 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 association from the 25-member limit.
Section 3. Qualifications. Each
director must be a citizen of the United States and must own in his or her own right either shares of the capital stock of the
association or a company that controls the association that has not less than an aggregate par value of $1,000, an aggregate shareholders’
equity of $1,000, or an aggregate fair market value of $1,000. The value of the common or preferred stock held by a director is
valued as of the date purchased or the date on which the individual became a director, whichever is greater.
Section 4. Organization
Meeting. After each annual meeting of shareholders at which directors shall have been elected, the Board of Directors shall
meet as soon as practicable for the purpose of organization and the transaction of other business. Such first regular meeting
shall be held at any place as may be designated by the chair, the president or the Board of Directors for such first regular meeting
or, in default of such designation, where the immediately preceding meeting of shareholders was held.
Section
5. Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such places as may be designated
from time to time by the chair. No notice of regular meetings shall be necessary.
Section 6.
Special Meetings. Special meetings of the Board of Directors may be called at any time by the chair, the chief executive
officer, the president or by a majority of the then- acting directors by vote at a meeting or in writing, or by a majority of
the members of the executive committee, if one is constituted, by vote at a meeting or in writing. A special meeting of the
Board of Directors shall be held on such date and at any place as may be designated from time to time by the Board of
Directors. In the absence of such designation, such meeting shall be held at such place as may be designated in the call.
Each member of the Board of Directors shall be given notice stating the date, time and place, by letter, electronic delivery
or in person, of each special meeting not less than one day before the meeting. Such notice need not specify the
purpose for which the meeting is called, unless required by the Articles of Association or the bylaws.
Section 7. 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 11. 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. No director
may vote by proxy.
Section 8. Attendance
by Electronic, Telephonic or Similar Means. Any one or more members of the Board of Directors or any committee thereof may
participate in a regular or special meeting of such board or committee by, or conduct the meeting through the use of, conference
telephone or other communications equipment by which all directors or committee members participating may simultaneously
hear each other during the meeting. Participation in a meeting by these means constitutes presence in person at a meeting.
Section 9. 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 10. Removal
of Directors. Any director may be removed for cause at any meeting of shareholders, notice of which shall have referred to
the proposed action, by vote of the shareholders. Any director may be removed without cause at any meeting of shareholders, notice
of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the association
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 11. Vacancies.
When any vacancy occurs among the directors, a majority of the remaining members of the Board of Directors may appoint a director
to fill such vacancy until the next election 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. 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.
Section 12.
Consent of Directors without a Meeting. Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if the action is taken by all members of the Board. The action may be evidenced by
one or more written consents signed by each director before or after such action, describing the action taken, and included
in the minutes or filed with the corporate records. A director’s consent to action taken without a meeting may be in
electronic form and delivered by electronic means.
Section 13. Ratification.
The board of directors may ratify and make binding on the association any action or inaction by the association or its officers
to the extent that the Board of Directors or the shareholders could have originally authorized the matter and as permitted by
law. Moreover, any action or inaction questioned in any shareholders’ derivative proceeding or any other proceeding on the
ground of lack of authority, defective or irregular execution, adverse interest of a director, officer or shareholder, non-disclosure,
miscomputation, the application of improper principles or practices of accounting or otherwise, may be ratified, before or after
judgment, by the Board of Directors or by the shareholders, and if so ratified, shall have the same force and effect as if the
questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the shareholders
and shall constitute a bar to any claim or execution of any judgment in respect of such questioned action or inaction.
ARTICLE
III
Committees
Section 1. Executive
Committee. The Board of Directors may appoint an Executive Committee, which shall have and may exercise, during the intervals
between meetings of the Board of Directors, all the powers of the Board of Directors in the management of the business, properties
and affairs of the association except as prohibited by law, the Articles of Association or these Bylaws. All acts done and powers
conferred by the Executive Committee shall be deemed to be and may be certified as being, done or conferred under authority of
the Board of Directors.
Section 2. Trust Audit
Committee. Unless delegated pursuant to Section 5 of this Article III, 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 association
or an affiliate who participate significantly in the administration of the association’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.
Section 3.
Examining Committee. Unless delegated pursuant to Section 5 of this Article III, 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.
Section 4. Other Committees.
The Board of Directors may from time to time by resolution adopted by affirmative vote of a majority of the Board of Directors,
appoint other committees of the Board of Directors which shall have such powers and duties as the Board of Directors may properly
determine. No such other committee of the Board of Directors shall be composed of fewer than three (3) directors. The Board of
Directors may also appoint one or more directors as alternative members of a committee. All acts done and powers conferred by
the Board of Directors on committees of the Board of Directors shall be deemed to be and may be certified as being, done or conferred
under that authority of the Board of Directors.
Section 5. Delegation
of Responsibility and Authority. The responsibility, authority and constitution of any committee under this Article III may,
if authorized by law, be given over to a duly constituted committee of the association’s parent corporation by resolution
adopted 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 shareholders,
appoint or elect a chair of the Board, a chief executive officer, a president, one (1) or more senior executive vice presidents, a corporate
secretary, a treasurer, a chief auditor, and such other officers as it may determine, each to hold office until the next Annual Reorganization
meeting. The officers below the level of senior executive vice president may be elected as follows: the head of the Human Resources Department
of M&T Bank, or his or her designee, may appoint officers up to and including (without limitation as to title or number) one (1)
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 the chair of the board,
chief executive officer, president, any “Executive Officer” of the association for the purposes of Regulation O (codified
at 12 C.F.R. §215.2(e)(1)), and any “Senior Executive Officer” within the meaning of 12 C.F.R. §5.51(c)(4) may
only be appointed by the Board of Directors.
Section 2. Chair of
the Board. The Board of Directors shall appoint one of its members to be the chair of the Board to serve at its pleasure.
Such person shall preside at all meetings of the Board of Directors. The chair 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. The president
shall be a member of the Board of Directors. In the absence of the chair, 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 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, 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 chair 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. 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
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,
by facsimile process, or electronic means 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 and otherwise comply with the requirements of 12 U.S.C.
52 and 12 C.F.R. §7.2016(b).
Section 3. Lost, Stolen
or Destroyed Certificates. In case any certificate representing shares shall be lost, stolen or destroyed, the Board of Directors,
in its discretion, or any officer or officers thereunder duly authorized by the Board of Directors, may authorize the issue of
a substitute certificate or substitute shares in uncertificated form in the place of the certificate so lost, stolen or destroyed.
Section 4. Fixing of
Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining shareholders entitled
to notice of or to vote at any meeting of shareholders or determining shareholders entitled to receive payment of any dividend
or the allotment of any other rights, in order to make a determination of shareholders for any other proper purpose. Such date,
in any case, shall be 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 10 days before the meeting.
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 association 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 the 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 shareholders. To the extent permitted by law, the Board of Directors or, if
applicable, the shareholders, 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 the 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 shareholders, 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 Board of Directors shall have the power, at any regular or special meeting thereof, to amend, alter or repeal the bylaws of
the association, or to make and adopt new bylaws. These Bylaws may be amended, altered or repealed and new bylaws may be adopted
by the shareholders of the association to the extent and as permitted in the Articles of Association or applicable law.
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: May 17, 2024 |
By: |
/s/ Michael H. Wass |
| |
Name: |
Michael H. Wass |
| |
Title: |
Vice President |
| |
|
|
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON
TRUST, NATIONAL ASSOCIATION
As of the close
of business on March, 31, 2024
| ASSETS | |
Thousands
of Dollars | |
| Cash and balances due from depository institutions: | |
| 541,766 | |
| Securities: | |
| 5,757 | |
| 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: | |
| 41,846 | |
| Premises and fixed asset | |
| 33,772 | |
| Other real estate owned: | |
| 210 | |
| Investments in unconsolidated subsidiaries and associated companies: | |
| 0 | |
| Direct and indirect investments in real estate ventures: | |
| 0 | |
| Intangible assets: | |
| 0 | |
| Other assets: | |
| 56,169 | |
| Total Assets: | |
| 679,520 | |
| | |
| | |
| LIABILITIES | |
Thousands
of Dollars | |
| Deposits | |
| 5,939 | |
| Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
| Other borrowed money: | |
| 0 | |
| Other Liabilities: | |
| 82,329 | |
| Total Liabilities | |
| 88,268 | |
| | |
| | |
| EQUITY CAPITAL | |
Thousands
of Dollars | |
| Common Stock | |
| 1,000 | |
| Surplus | |
| 348,278 | |
| Retained Earnings | |
| 242,226 | |
| Accumulated other comprehensive income | |
| (252 | ) |
| Total Equity Capital | |
| 591,252 | |
| Total Liabilities and Equity Capital | |
| 679,520 | |
Exhibit 25.2
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
T-1
o
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)
Simmons First
National Corporation
(Exact
name of obligor as specified in its charter) |
| Arkansas |
71-0407808 |
| (State
or other jurisdiction of incorporation or organization) |
(I.R.S.
Employer Identification No.) |
| |
|
501 Main Street
Pine Bluff, Arkansas 71601
(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 4 of 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 17th
day of May, 2024.
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WILMINGTON TRUST, NATIONAL ASSOCIATION |
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|
|
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By: |
/s/ Michael H. Wass |
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Name: |
Michael H. Wass |
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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 7, 2024)
AMENDED
AND RESTATED BYLAWS OF
WILMINGTON
TRUST, NATIONAL ASSOCIATION
ARTICLE
I
Meetings
of Shareholders
Section 1. Annual
Meeting. The annual meeting of shareholders shall be held on such date and at such time as may be designated by the chair
of the Board of Directors, the chief executive officer, the president, the chief operating officer, the secretary, or the Board
of Directors for the purpose of the election of directors and for the transaction of such other business as may properly come
before the meeting, except such date shall not be a legal holiday in Delaware. 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 or her address appearing on the books of the association. If, for any cause, an election of directors is not made on that
date, 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. The chair of the Board of Directors, the president, the chief executive officer, the secretary, or the Board of
Directors may call a special meeting of the shareholders. A special meeting shall be called to act on any matter that may properly
be considered at a meeting of shareholders upon the written request of shareholders entitled to cast not less than a majority
of all the votes entitled to be cast on such matter at the meeting. 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.
Section 3. Adjournment.
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 4. Nominations
of Directors. Nominations for election to the Board of Directors may be made by the Board of Directors or by any shareholder
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, 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 chair of the meeting, and upon his/her instructions, all
votes cast for each such nominee may be disregarded.
Section 5. 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. A director or an attorney of the association may act as proxy for shareholders voting if
they are not also employed as an officer of the association. 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 6. 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, 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. 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
association 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. The Board of Directors may not increase the number of directors between meetings of shareholders to a number
which: (a) exceeds by more than 2 the number of directors last elected by shareholders where the number was 15 or less; or (b)
exceeds by more than 4 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 association from the 25-member limit.
Section 3. Qualifications. Each
director must be a citizen of the United States and must own in his or her own right either shares of the capital stock of the
association or a company that controls the association that has not less than an aggregate par value of $1,000, an aggregate shareholders’
equity of $1,000, or an aggregate fair market value of $1,000. The value of the common or preferred stock held by a director is
valued as of the date purchased or the date on which the individual became a director, whichever is greater.
Section 4. Organization
Meeting. After each annual meeting of shareholders at which directors shall have been elected, the Board of Directors shall
meet as soon as practicable for the purpose of organization and the transaction of other business. Such first regular meeting
shall be held at any place as may be designated by the chair, the president or the Board of Directors for such first regular meeting
or, in default of such designation, where the immediately preceding meeting of shareholders was held.
Section
5. Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such places as may be designated
from time to time by the chair. No notice of regular meetings shall be necessary.
Section 6.
Special Meetings. Special meetings of the Board of Directors may be called at any time by the chair, the chief executive
officer, the president or by a majority of the then- acting directors by vote at a meeting or in writing, or by a majority of
the members of the executive committee, if one is constituted, by vote at a meeting or in writing. A special meeting of the
Board of Directors shall be held on such date and at any place as may be designated from time to time by the Board of
Directors. In the absence of such designation, such meeting shall be held at such place as may be designated in the call.
Each member of the Board of Directors shall be given notice stating the date, time and place, by letter, electronic delivery
or in person, of each special meeting not less than one day before the meeting. Such notice need not specify the
purpose for which the meeting is called, unless required by the Articles of Association or the bylaws.
Section 7. 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 11. 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. No director
may vote by proxy.
Section 8. Attendance
by Electronic, Telephonic or Similar Means. Any one or more members of the Board of Directors or any committee thereof may
participate in a regular or special meeting of such board or committee by, or conduct the meeting through the use of, conference
telephone or other communications equipment by which all directors or committee members participating may simultaneously
hear each other during the meeting. Participation in a meeting by these means constitutes presence in person at a meeting.
Section 9. 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 10. Removal
of Directors. Any director may be removed for cause at any meeting of shareholders, notice of which shall have referred to
the proposed action, by vote of the shareholders. Any director may be removed without cause at any meeting of shareholders, notice
of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the association
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 11. Vacancies.
When any vacancy occurs among the directors, a majority of the remaining members of the Board of Directors may appoint a director
to fill such vacancy until the next election 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. 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.
Section 12.
Consent of Directors without a Meeting. Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if the action is taken by all members of the Board. The action may be evidenced by
one or more written consents signed by each director before or after such action, describing the action taken, and included
in the minutes or filed with the corporate records. A director’s consent to action taken without a meeting may be in
electronic form and delivered by electronic means.
Section 13. Ratification.
The board of directors may ratify and make binding on the association any action or inaction by the association or its officers
to the extent that the Board of Directors or the shareholders could have originally authorized the matter and as permitted by
law. Moreover, any action or inaction questioned in any shareholders’ derivative proceeding or any other proceeding on the
ground of lack of authority, defective or irregular execution, adverse interest of a director, officer or shareholder, non-disclosure,
miscomputation, the application of improper principles or practices of accounting or otherwise, may be ratified, before or after
judgment, by the Board of Directors or by the shareholders, and if so ratified, shall have the same force and effect as if the
questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the shareholders
and shall constitute a bar to any claim or execution of any judgment in respect of such questioned action or inaction.
ARTICLE
III
Committees
Section 1. Executive
Committee. The Board of Directors may appoint an Executive Committee, which shall have and may exercise, during the intervals
between meetings of the Board of Directors, all the powers of the Board of Directors in the management of the business, properties
and affairs of the association except as prohibited by law, the Articles of Association or these Bylaws. All acts done and powers
conferred by the Executive Committee shall be deemed to be and may be certified as being, done or conferred under authority of
the Board of Directors.
Section 2. Trust Audit
Committee. Unless delegated pursuant to Section 5 of this Article III, 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 association
or an affiliate who participate significantly in the administration of the association’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.
Section 3.
Examining Committee. Unless delegated pursuant to Section 5 of this Article III, 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.
Section 4. Other Committees.
The Board of Directors may from time to time by resolution adopted by affirmative vote of a majority of the Board of Directors,
appoint other committees of the Board of Directors which shall have such powers and duties as the Board of Directors may properly
determine. No such other committee of the Board of Directors shall be composed of fewer than three (3) directors. The Board of
Directors may also appoint one or more directors as alternative members of a committee. All acts done and powers conferred by
the Board of Directors on committees of the Board of Directors shall be deemed to be and may be certified as being, done or conferred
under that authority of the Board of Directors.
Section 5. Delegation
of Responsibility and Authority. The responsibility, authority and constitution of any committee under this Article III may,
if authorized by law, be given over to a duly constituted committee of the association’s parent corporation by resolution
adopted 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 shareholders,
appoint or elect a chair of the Board, a chief executive officer, a president, one (1) or more senior executive vice presidents, a corporate
secretary, a treasurer, a chief auditor, and such other officers as it may determine, each to hold office until the next Annual Reorganization
meeting. The officers below the level of senior executive vice president may be elected as follows: the head of the Human Resources Department
of M&T Bank, or his or her designee, may appoint officers up to and including (without limitation as to title or number) one (1)
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 the chair of the board,
chief executive officer, president, any “Executive Officer” of the association for the purposes of Regulation O (codified
at 12 C.F.R. §215.2(e)(1)), and any “Senior Executive Officer” within the meaning of 12 C.F.R. §5.51(c)(4) may
only be appointed by the Board of Directors.
Section 2. Chair of
the Board. The Board of Directors shall appoint one of its members to be the chair of the Board to serve at its pleasure.
Such person shall preside at all meetings of the Board of Directors. The chair 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. The president
shall be a member of the Board of Directors. In the absence of the chair, 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 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, 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 chair 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. 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
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,
by facsimile process, or electronic means 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 and otherwise comply with the requirements of 12 U.S.C.
52 and 12 C.F.R. §7.2016(b).
Section 3. Lost, Stolen
or Destroyed Certificates. In case any certificate representing shares shall be lost, stolen or destroyed, the Board of Directors,
in its discretion, or any officer or officers thereunder duly authorized by the Board of Directors, may authorize the issue of
a substitute certificate or substitute shares in uncertificated form in the place of the certificate so lost, stolen or destroyed.
Section 4. Fixing of
Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining shareholders entitled
to notice of or to vote at any meeting of shareholders or determining shareholders entitled to receive payment of any dividend
or the allotment of any other rights, in order to make a determination of shareholders for any other proper purpose. Such date,
in any case, shall be 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 10 days before the meeting.
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 association 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 the 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 shareholders. To the extent permitted by law, the Board
of Directors or, if applicable, the shareholders, 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 the 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 shareholders, 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 Board of Directors shall have the power, at any regular or special meeting thereof, to amend, alter or repeal the bylaws of
the association, or to make and adopt new bylaws. These Bylaws may be amended, altered or repealed and new bylaws may be adopted
by the shareholders of the association to the extent and as permitted in the Articles of Association or applicable law.
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: May 17, 2024 |
By: |
/s/ Michael H. Wass |
| |
Name: |
Michael H. Wass |
| |
Title: |
Vice President |
| |
|
|
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON
TRUST, NATIONAL ASSOCIATION
As of the close
of business on March, 31, 2024
| ASSETS | |
Thousands
of Dollars | |
| Cash and balances due from depository institutions: | |
| 541,766 | |
| Securities: | |
| 5,757 | |
| 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: | |
| 41,846 | |
| Premises and fixed asset | |
| 33,772 | |
| Other real estate owned: | |
| 210 | |
| Investments in unconsolidated subsidiaries and associated companies: | |
| 0 | |
| Direct and indirect investments in real estate ventures: | |
| 0 | |
| Intangible assets: | |
| 0 | |
| Other assets: | |
| 56,169 | |
| Total Assets: | |
| 679,520 | |
| | |
| | |
| LIABILITIES | |
Thousands
of Dollars | |
| Deposits | |
| 5,939 | |
| Federal funds purchased and securities sold under agreements to repurchase | |
| 0 | |
| Other borrowed money: | |
| 0 | |
| Other Liabilities: | |
| 82,329 | |
| Total Liabilities | |
| 88,268 | |
| | |
| | |
| EQUITY CAPITAL | |
Thousands
of Dollars | |
| Common Stock | |
| 1,000 | |
| Surplus | |
| 348,278 | |
| Retained Earnings | |
| 242,226 | |
| Accumulated other comprehensive income | |
| (252 | ) |
| Total Equity Capital | |
| 591,252 | |
| Total Liabilities and Equity Capital | |
| 679,520 | |
EXHIBIT
107
Calculation
of Filing Fee Tables
Form
S-3
(Form Type)
Simmons
First National Corporation
(Exact Name of Registrant
as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
|
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing
Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
|
| Newly
Registered Securities |
|
| Fees
to be Paid |
Equity |
Class
A Common Stock, par value $0.01 per share |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Equity |
Preferred
Stock, par value $0.01 per share |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Debt |
Debt
Securities |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Other |
Depositary
Shares(3) |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Other |
Warrants(4) |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Other |
Purchase
Contracts(5) |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Other |
Subscription
Rights |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Other |
Units(6) |
Rule
456(b) and Rule 457(r)(1) |
(2) |
(2) |
|
(2) |
(1) |
(1) |
|
|
|
|
|
| Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
N/A |
|
|
|
|
|
| Carry
Forward Securities |
|
| Carry
Forward Securities |
N/A |
N/A |
N/A |
N/A |
|
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
|
| |
Total
Offering Amounts |
|
|
N/A |
|
(1) |
|
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
|
N/A |
|
|
|
|
|
| |
Total
Fee Offsets |
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|
|
|
N/A |
|
|
|
|
|
| |
Net
Fee Due |
|
|
|
|
(1) |
|
|
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|
|
| (1) | In
accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended (the
“Securities Act”), Simmons First National Corporation (the “Registrant”)
is deferring payment of all of the registration fees associated with the registration of
the offer and sale of the aforementioned securities. Registration fees will be paid subsequently
on a “pay as you go” basis. The Registrant will calculate the registration fee
applicable to an offering of securities pursuant to this Registration Statement based on
the fee rate in effect on the date of such offering. |
| (2) | An
indeterminate number and aggregate initial offering price of securities of each identified
class are being registered as may from time to time be offered at indeterminate prices, including
an indeterminate number or amount of securities that may be issued upon the exercise, settlement,
exchange or conversion of securities offered hereunder. Separate consideration may or may
not be received for securities that are issuable on exercise, settlement, exchange or conversion
of other securities. |
| (3) | Each
depositary share will be issued under a deposit agreement and will represent a fractional
share of preferred stock. |
| (4) | Includes
warrants to purchase common stock or preferred stock. |
| (5) | Purchase
contracts may be issued separately or as purchase units. |
| (6) | Each
unit will represent an interest in two or more securities registered under this Registration
Statement, which may or may not be separable from one another. |
Simmons First National (NASDAQ:SFNC)
Gráfica de Acción Histórica
De Mar 2025 a Abr 2025
Simmons First National (NASDAQ:SFNC)
Gráfica de Acción Histórica
De Abr 2024 a Abr 2025
